Wakeman, Barry Write on Pursuing Wrongful Death Grief Claims
Pursuing Claims for Grief Under the Revised Wrongful Death Act
Editor’s Note: This article was subsequently published in the January 2013 issue of the Illinois Bar Journal.
Elizabeth Felt Wakeman, Gregory J. Barry
Zukowski, Rogers, Flood & McArdle, Crystal Lake, IL
Juries are now permitted to consider grief, sorrow, and mental suffering in wrongful death cases. Maximizing (or minimizing) this new aspect of a claim requires consideration of the impact of the new law at each stage of the trial.
Until recently, wrongful death claims for grief, sorrow or mental suffering incurred by next of kin were not recognized in Illinois. Next of kin were limited to pursuing pecuniary claims based on their relationship with the deceased such as loss of society or support. However, that all changed in 2007 when the Wrongful Death Act (740 ILCS 180/2) (“Act”) was amended by the Illinois legislature. The legislature’s revision now specifically allows next of kin to seek damages for the “grief, sorrow and mental suffering” that they have incurred as a result of the wrongful death. This article will examine the ramifications of this new and significant development for wrongful death claims, including the mechanics of navigating such a claim from the perspective of a plaintiff’s attorney.
Our firsthand experience with the new law stems from a January 2011 trial where our firm represented a young boy in the wrongful death of his father in a motorcycle collision that occurred within months of the amendment to the Wrongful Death Act. The jury returned a verdict in the boy’s favor, notably including $100,000 as a separate line item of damages for the boy’s grief, sorrow and mental suffering. This verdict is the first reported jury award for grief, sorrow and mental suffering under the revised Wrongful Death Act.
I. Grief, Sorrow, and Mental Suffering – Added by Public Act 95-3
Section 2 of the Act prior to the 2007 revision did not explicitly permit damages for grief, sorrow, and mental suffering. Rather, it permitted damages that would be “a just and fair compensation with reference to the pecuniary injuries suffered resulting from [the] death.” 740 ILCS 180/2 (2006). Longstanding case law, however, held that grief, sorrow, and mental suffering were not to be considered in determining this “just and fair compensation.” This was reflected in the Pattern Jury Instructions as well. See IPI Civ 3d No 31.07 (2011).
Public Act 95–3, effective on May 31, 2007, clarified Section 2 to provide that: “the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, including damages for grief, sorrow, and mental suffering, to the surviving spouse and next of kin of such deceased person.” 740 ILCS 180/2 (emphasis added on language added by PA 95–3). This was the sole substantive change in the law effected by the public act — only Section 2 of the Wrongful Death Act was changed, and the other changes were merely to clarify the statute and to specify the prospective application of PA 95–3.
II. Legislative History
While there is as of yet no case law to clarify the impact of the “grief, sorrow and mental suffering” aspects of damages in wrongful death claims, there was substantial debate in the legislative chambers prior to the passage of PA 95–3. Without repeating the floor debates verbatim, the following principles can be gleaned as to the understanding of the legislators – both those who supported and those who opposed the bill — of the construction, application, and practical effect of the bill:
- PA 95–3 only alters the issues to be considered in awarding damages, and not standing, damage caps, or other issues;
- The jury will be able to consider grief, sorrow, and mental suffering;
- Attorneys will be able to present evidence and argument on those issues;
- Jury instructions will be revised to either provide one line item for the new elements or separate, new lines for each element;
- Verdict forms will have either one new line item or separate new line items as contemplated for the jury instructions;
- “Grief, sorrow, and mental suffering” are separate and distinct from other pecuniary damages under the Wrongful Death Act (and are capped, non-economic damages under the Medical Malpractice Act);
- “Grief, sorrow, and mental suffering” are different from loss of society;
- The new terms will remain undefined and will be determined by effective advocacy at trial.
III. Jury Instructions
As predicted by the various legislators, the pattern jury instructions have been revised to reflect the statutory amendment. Instruction 31.01 lists “[t]he grief, sorrow, and mental suffering of [next of kin]” as distinct consideration in determining pecuniary loss. IPI Civ 3d No 31.01 (2011 ed). The comment to Instruction 31.01 reads: “Item 9 is a new addition to the instruction. Its inclusion is based on the 2007 amendment to the Wrongful Death Act, 740 ILCS 180/2. That amendment (PA 95–3) permits the recovery of damages for grief, sorrow, and mental suffering of the next of kin.” Similar revisions to the instructions and notes in the commentary are found in Instructions 31.01(a), 31.02, 31.02(a), 31.03, 31.03(a), 31.04, 31.05, and 31.06.
Even when PA 95–3 has not resulted in an alteration of the Illinois Pattern Jury Instructions, its presence is still significant. Paragraph 2 of the current version of Instruction 31.07 (“Measure of Damages—Wrongful Death—Factors Excluded”) continues to direct the jury not to consider “[t]he grief or sorrow of the next of kin.” However, the Notes on Use state: “For causes of action that accrue after May 31, 2007, paragraph 2 should be deleted from this Instruction. Under PA 95–3, effective May 31, 2007, next of kin may recover damages for their grief, sorrow and mental suffering.” Thus, Instruction 31.07 will only direct the jury not to consider the decedent’s pain and suffering and the next of kin’s poverty or wealth.
Finally, the Notes on Use in the above Instructions require Instruction 31.11, “Damages—Loss of Society—Definition” to be used whenever loss of society is claimed. Instruction 31.11 defines “loss of society” as “the mutual benefits that each family member receives from the other’s continued existence, including love, affection, care, attention, companionship, comfort, guidance, and protection.” This is the current definition under the 2011 edition of the Illinois Pattern Jury Instructions, and as such, the editors consciously omitted “grief, sorrow, and mental suffering” from the definition of loss of society. This presents a strong argument that “loss of society” and “grief, sorrow, and mental suffering” are to be separate areas of recovery in jury awards, and that grief, sorrow and mental suffering are not subsumed into loss of society.
Because the pattern jury instructions have already been changed to reflect the amendment to the Wrongful Death Act, counsel for plaintiffs should be comfortable submitting the Instructions for consideration. Counsel for defendants will have an uphill climb trying to block use of the Instructions, especially since grief, sorrow, and mental suffering are enshrined in the Act as matters for the jury to consider in awarding damages.
A. Pattern Verdict Forms
While the Illinois Pattern Jury Instructions contains specific directions on jury instructions, including with regard to grief, sorrow and mental suffering in Wrongful Death Act cases, its verdict forms are far more general. This holds true for the verdict forms that may be used in wrongful death cases. For example, see Instruction B45.01 (“Verdict Form A—Single Plaintiff and Defendant—No Contributory Negligence Pleaded”). The entire form reads:
VERDICT FORM A
We, the jury, find for plaintiff’s name and against defendant’s name. We assess the damages in the sum of, [itemized as follows:]
At trial, practitioners should expect a dispute on how the categories of damages should be “itemized as follows” on the submitted verdict form. Expect defense counsel’s argument to be that since the pattern jury instructions verdict forms do not provide for a separate line item for grief, sorrow and mental suffering, and that the jury instructions do take those items into account, that the verdict form should be left as is. Plaintiffs’ counsel, in response, would likely refer the court to Instruction 31.06 and the related instructions, which specifically reference grief, sorrow and mental suffering as a measure of damages as elaborated upon in the notes and comments. Plaintiffs’ counsel may also point out that the next of kin’s grief, sorrow and mental suffering is clearly separate in nature from loss of society, in that Instruction 31.11 defines society as “the mutual benefits that each family member receives from the others continued existence, including love, affection, care, attention, companionship, comfort, guidance, and protection.” That definition makes no reference to personal grief, sorrow and mental suffering of the next of kin and remains unchanged after the amendment to the wrongful death statute in 2007, which allowed for damages for grief, sorrow and mental suffering. If such claims were really a part of loss of society, then there should have been a change in the IPI definition of society to reflect that change.
B. Arguing the Legislative History
Finally, counsel for plaintiffs should be prepared to argue the legislative history of Public Act 95–3 to show that the verdict forms should contain a separate line item for grief, sorrow, and mental suffering. As the floor debates show, the proponents clarified that the purpose of the bill was to allow the jury to consider grief, sorrow and mental suffering in formulating its award, and that those categories are now “a new area where a plaintiff can recover.” The opponents of the bill acknowledged that grief, sorrow, and mental suffering would be a separate item in the jury instructions – indeed, that was one of their primary objections. Further debate that same day suggests that grief, sorrow and mental suffering would be combined into a single, new line item rather than separate line items in the instructions.
The bill’s opponents also recognized that those new elements would also be a separate line item in verdict forms, which for them was a significant detriment, as shown by the following statement from Representative Winters:
“The Sponsor has mentioned in debate that this is adding a new area of recovery in this state. It’s a new area of recovery in jury cases. There’s going to be a new line on the jury form that will – after you’ve looked at the other recovery that you can get for deprivation of love, care, comfort, protection, guidance, advice, and affection of the deceased, there will be a new line for grief and sorrow . . . And believe me, if there’s an empty line with a figure to be filled in, the juries will be filling it in.”
These comments as to the jury verdict form were not contradicted or opposed by Representative Brosnahan, the bill’s sponsor, whom Representative Winters was addressing in part of his statement above. If the bill’s intent was not to create a new line item, one would think that the bill’s sponsor would clarify that rather than remaining silent when questioned on that point. This “exchange” between Representatives Winters and Brosnahan makes a strong case for legislative intent to have a separate line item on the verdict form, even though it is in the context of a practical argument as to why there should be no new line item.
The Senate debate followed the same pattern: an opponent of the bill stated that the verdict form would have a separate line item, followed by proponents who demur on the verdict-form issue. Both sides in both legislative chambers therefore understood that the bill, if passed, would change verdict forms to include a separate line item for grief, sorrow, and mental suffering. There is some legislative history suggesting that grief, sorrow, and mental suffering might have their own, separate line items, although the current pattern jury instructions suggest that those three elements should be considered together. Plaintiff’s counsel will have to decide whether to take the safe option of asking for one line item to cover all three elements or asking for separate line items for each. The latter option may require counsel to indicate how grief, sorrow, and mental suffering are to be distinguished among them.
IV. Motions in Limine
In addition to fighting the claim for grief, sorrow and mental suffering as a separate line item of damages, defense counsel will likely attempt to limit those damages through motions in limine designed to bar testimony related to that claim. For example, in our case, defense counsel filed a motion in limine requesting that we be barred from introducing any evidence of grief, sorrow and mental suffering except through testimony of the next-of-kin. Plaintiff’s counsel should respond by showing how PA 95–3 clearly puts grief, sorrow, and mental suffering at issue in the case. There is nothing in the statute, legislative history, or pattern jury instructions which remotely suggests that only the next-of-kin is competent to testify on the issues of grief, sorrow, and mental suffering. While lay witnesses may not be able to testify with certitude that the claimant actually suffered grief, sorrow, and mental suffering as specific conditions, there is nothing in the law preventing their testifying as to facts from which the jury could infer grief, sorrow, and mental suffering. Ultimately, the judge in our case allowed our lay witnesses to provide testimony that evidenced our client’s grief, sorrow and mental suffering without using those actual words. The motion was denied in its entirety as to our expert witness, a retained psychiatrist.
V. Strategic Considerations in Presenting Evidence
As noted above, a judge may decide a motion in limine regarding grief, sorrow and mental suffering by preventing lay witnesses (other than the next-of-kin) from using the specific words “grief,” “sorrow,” and “mental suffering” but allowing their testimony as to facts relating to those elements, while allowing the claimant and any qualified expert witnesses to testifying as to the actual grief, sorrow, and mental suffering experienced by the next-of-kin. While there are several approaches to the content of testimony presented and the order of witnesses, one approach for plaintiffs’ counsel that may prove effective is leading with testimony from several friends, family members, and acquaintances of the claimant to provide several different glosses on the central issue of your client’s mental suffering. This can be followed by putting an expert psychiatrist on the stand to give context — the specific mental condition of grief, sorrow, and mental suffering — to the anecdotes and observations of the lay witnesses. Finally, once the jury has been fully prepared emotionally, testimony from the next-of-kin as to his or her personal grief and sorrow can prove particularly effective.
VI. Settlement Value
Another strategic issue raised by the amendment to the Wrongful Death Act is how much, if at all, the value of wrongful death claims are increased for settlement and trial purposes, and, relatedly, how much energy should be devoted in pursuing the “grief, sorrow, and mental suffering” aspect of the greater wrongful death claim. The value given to such claims by defense counsel and their clients is sure to vary from one insurance company to the next. Until sufficient precedent has been established through trials establishing that there is indeed a monetary value to these claims separate and apart from other aspects of wrongful death claims, practitioners should anticipate that insurance companies will not place a high value on the “grief, sorrow, and mental suffering” elements. Thus, for the time being, if plaintiffs’ counsels wish to make grief, sorrow and mental suffering claims a significant element of a wrongful death case, they need to be prepared to try the case and prove up that element of damages. Our experience suggests that this strategy is well worth pursuing. Ultimately, we received a jury verdict of over $600,000, which included an award of $100,000 for our client’s grief, sorrow and mental suffering. This was significantly higher than defendant’s last settlement offer of $450,000. This was the second highest recorded jury verdict ever for a wrongful death case in McHenry County, and suggests that future jury awards for grief, sorrow and mental suffering in less conservative counties (for example Cook County) could indeed be significant.
While the Wrongful Death Act was amended more than four years ago to permit grief, sorrow, and mental suffering to be considered, there is still little guidance in the law as to the impact of the amendment on planning and conducting wrongful death trials. Practitioners should familiarize themselves with the amended jury instructions and be prepared to use legislative history and cases from other jurisdictions to argue for the optimal verdict form and for or against inevitable motions in limine, as appropriate. Solid preparation and effective argument can alleviate the grief and mental suffering that practitioners may encounter in litigating this new aspect of wrongful death claims.
Elizabeth Felt Wakeman ([email protected]) has tried many personal injury and medical malpractice cases to verdict and is a partner with Zukowski, Rogers, Flood & McArdle. Gregory J. Barry ([email protected]) is an associate with Zukowski, Rogers, Flood & McArdle.
 See, for example, Uhr v. Lutheran General Hosp., 226 Ill App 3d 236, 589 NE2d 723 (1st Dist 1992), appeal allowed 145 Ill2d 645, 596 NE2d 638 (1992), vacated, ordered not precedential 244 Ill App 3d 289, 614 NE2d 319 (1st Dist 1993); Seef. v. Sutkus, 205 Ill App 3d 312, 562 NE2d 606 (1st Dist 1990), affirmed, 145 Ill 2d 336, 583 NE2d 510 (1991); Zostautas v. St. Anthony de Padua Hospital, 23 Ill2d 236, 177 NE2d 825 (1961); Webb v. Henke, 10 Ill App 2d 152, 134 NE2d 540 (4th Dist 1956); see also Brackett v. Builders Lumber Co. of Decatur, Ill., 253 Ill App 107, 1929 WL 3244 (3rd Dist 1929); Conant v. Griffin, 48 Ill 410, 1868 WL 5132 (1868); and City of Chicago v. Major, 18 Ill 349, 1857 WL 5582 (1857).
 See 95th Gen Assem, House of Reps, Transcript of 41st Legislative Day, April 24, 2007, pp 76–77; 95th Gen Assem, House of Reps, Transcript of 44th Legislative Day, April 27, 2007, pp 40–45, 53–54, 57, 60–61; 95th Gen Assem, Regular Session Senate Transcript of 41st Legislative Day, May 17, 2007, pp 36–38.
 95th Gen Assem, House of Reps, Transcript of 44th Legislative Day, April 27, 2007, p 40 (Rep Brosnahan); see also 95th Gen Assem, House of Reps, Transcript of 41st Legislative Day, April 2, 2007, pp 76–77 (Reps Brosnahan and Black).
 95th Gen Assem, House of Reps, Transcript of 44th Legislative Day, April 27, 2007, p 41 (Rep Meyer); see also id. at p 57 (Reps Lang and Brosnahan).
 Id at 60–61.
 95th Gen Assem, House of Reps, Transcript of 44th Legislative Day, April 27, 2007, p 53–54 (Rep Winters).
 State of Illinois, 95th General Assembly, Regular Session Sen Transcript of 41st Legislative Day, May 17, 2007, pp 36–38 (Sens Murphy, Noland, and Raoul).
© 2012 Elizabeth Felt Wakeman and Gregory J. Barry
Elizabeth Felt Wakeman
Gregory J. Barry