1. Wrongful Death Damages • States generally allow recovery of at least: • Pecuniary losses = medical/funeral expenses & loss of support (value of wages less what decedent would have paid himself) • Note: Some states allow loss of support claims for decedent minors if surviving parents had a reasonable future expectation of support from the child as an adult. • Missouri– rebuttable presumption that deceased’s losses are no more than the average of parents income • Loss of services = training, nurture, education, counsel, housework • Usually must show some evidence of activities of decedent and of cost of obtaining services on the market • Missouri– rebuttable presumption that value of care is = to 110% of average weekly wage as calculated in Mo statutes

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 … • Why does Missouri (like many states) exclude grief from loss of society? • How should we measure loss of society? • Loss of inheritance – many states allow recovery here too • Loss of inheritance = the amount of $ that P can show decedent’s estate would have accumulated (in excess of financial support) and would have made available to survivors • 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?

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

4. The Tort Reform Movement – additional issues in limiting rightful position • When talking earlier about damages that could be (relatively) easily measured there were several ways in which parties/courts could limit damages: • Liquidated damages and 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 the limitations on damages usually are statutory in nature (although offset/avoidable consequences can apply here too) • To what extent do these statutes raise problems? • What pushes legislatures to enact these limits?

5. Arbino (p. 151) – 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 (see p. 153 top) • 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?

6. Missouri Medical Malpractice Statute – just FYI • 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. • 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., 2012 WL 3101657 (July 31, 2012)

7. Tort Reform Proposals • Most common proposals for tort reform take the form of those listed at p. 159-160 n.2. • 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?

8. Oden (p.95) – 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. • Upshot - D is not entitled to use the compensation P receives from independent sources as evidence that P’s damages should be lower or to directly reduce P’s damages • WHY this rule? • Because most insurance companies required subrogation, P’s won’t get to keep tort damages anyway • Many also reasoned it was unfair for D (the wrongdoer) to benefit from P’s foresight in buying insurance. • Classic examples of collateral sources: • Insurance payouts, Benefits programs (Medicare, SS, Disability, etc.), Sick leave plans • BUT Payments from joint tortfeasorsdo notcount as collateral sources

9. Tort Reform, Statutory Limits & Collateral Sources • 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, p.96 top) • 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 and Watts). 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