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How Much Is A Wrongful Death Lawsuit Worth?

By Max Kennerly, Esq. on October 13, 2012 - No comments

Wrongful death is a catch-all term the law uses to describe any lawsuit involving the death of a family member. Everything from intentional homicide, to avoidable medical injuries, to an accident at a construction site is referred to as a “wrongful death and survival” claim. The wrongful death claim refers to the claims of a grieving spouse and the decedent’s children, while the survival claim refers to any pain and suffering or lost lifetime wages of the decedents.

For our wrongful death clients, there’s one question many want to have answered, but they don’t really know how to ask, the “money question.” There’s nothing wrong or inappropriate about asking a lawyer about it: when a loved one dies, concerns about money don’t go away. In many wrongful death cases, the death of a loved one has made the family’s financial situation much worse, either by the death of a house’s breadwinner or by the incapacitation that can come with losing a loved one, putting a survivor out of work for weeks, sometimes months. If I die unexpectedly, I hope my wife turns quickly towards doing everything she can to ensure she can pay the mortgage and bills, and to ensure the family can afford all of the experiences and education that we both wanted for our children.

You need to know, and it’s not wrong to ask: how much is a wrongful death lawsuit worth?

Before we get to the numbers, there’s a very basic principle you need to know. Lawyers are prohibited from guaranteeing any result to any client. If a lawyer tells you they are “certain” or “100% sure” about the value of a wrongful death case, you already have a problem on your hands, and you should start looking for other options.

Even if we were not prohibited by law from guaranteeing results, we would not do it, because lawsuits are simply too unpredictable. In our 50 years, we have obtained over $2 billion in jury awards and settlements in wrongful death cases, and each and every one of those cases was decided on its unique facts. Each verdict or settlement was the result of years of litigation, with all kinds of battles over legal issues, expert witnesses, and so on, where different judges or courts or juries could have reached different results. Seemingly minor differences, like a photograph from the day of the accident or a handwritten scribble on a medical record, can mean the difference between a million-dollar case and a case with no award at all.

 

The First Question in Assessing the Value of a Lawsuit: What Type of Wrongful Death Lawsuit Will Be Filed?

 

In a typical wrongful death lawsuit, a decedent’s estate and their surviving family members are entitled to a variety of “economic” damages like lost income from employment and medical care expenses, as well as “non-economic” damages like the loss of the family member’s companionship and the decedent’s pain and suffering before they died.

But, if the person died at work, the estate and family might only have a claim for workers’ compensation, which generally does not include any non-economic damages. (That’s why, when we review a case involving a death on the job, we also look for potential lawsuits against companies other than the decedent’s employer, because those “third-party claims” can result in far more fair and adequate compensation for the decedent’s family members.)

Further, courts and juries respond differently to different types of wrongful death lawsuits. Medical malpractice cases, for example, are very difficult to prove, and juries find in favor of the doctor or hospital nearly 90% of the time in Pennsylvania. The statistics in New Jersey, Delaware, and across the country, are similar. Juries in construction site falls and interstate truck crash cases are more welcoming to wrongful death claims, because the standards governing those companies (like OSHA and the FMCSR) are so clear. In pharmaceutical negligence lawsuits, juries rightfully expect that million-dollar drug companies will warn patients and their physicians of serious risks of the medication, like increased risk of cancer or irreversable internal bleeding, which are the problems with Actos and Pradaxa. In drunk driving lawsuits, jurors are often outraged by the reckless behavior.

 

Second, What Kind of Economic Damages (like Lost Wages and Medical Expenses) Did the Estate And The Family Suffer?

 

From a personal standpoint, the greatest loss of a death is of course a personal loss, one that no monetary figure could ever encapsulate. But in terms of the law, and in terms of what juries in wrongful death trials are asked to do, the analysis does not start with the personal loss, but with the economic loss.

What kind of job did the decedent have? What were their earnings prospects for the future? When were they likely going to retire? How much did they financially contribute to other family members? All of those questions are described as “lost wages” by the law, and they’re available as compensation in wrongful death lawsuits. We hire expert economists to explain how to add those damages up over the decedent’s life expectancy.

Beyond the decedent’s lost income, there are questions of expenses that would not have happened except for the defendant’s negligence or other wrongful conduct. In general, all hospital, medical, funeral, burial, and estate administration expenses incurred should be reimbursed by any damages recovered by the lawsuit, though health insurance companies or Medicare / Medicaid might impose a “subrogation lien” for the medical expenses they initially paid. (We negotiate with the insurer to reduce those liens.)

 

Third, What Are The Noneconomic Damages (like the Decedent’s Pain and Suffering, and the Spouse’s Loss of Consortium)?

 

As described above, a wrongful death case actually has two components: the “survival” claim, which addresses the losses personal to the decedent, and the “wrongful death claim,” which addresses losses to family members.

In the “survival” claim, the jury is asked to award compensation for mental and physical pain, suffering, inconvenience, and loss of life’s pleasures that the decedent endured from the moment of their injury to the moment of their death. In some cases, where the death followed some time after a catastrophic injury, these types of damages are easy for juries to understand and to evaluate.

In cases involving a catastrophic accident, like an explosion or a high-speed accident, the defendants and their insurance company’s lawyers will argue that the death was “instantaneous,” and so the decedent felt no pain. As much as we wish this was true, the medical evidence usually suggests otherwise, and so we call pathologists and neurological specialists to talk about the pain the decedent likely suffered in the moments between the beginning of the accident and their death.

In a “wrongful death” claim, the jury is usually (in most states) not asked to award the family members any damages for their grief and loss. Instead, the “wrongful death” damages are narrowed to any “contributions” that wives, husbands, children, or parents would have received from the decedent, including money that the decedent would have spent for or given to their family for such items as shelter, food, clothing, medical care, education, entertainment, gifts, and recreation. It’s a strange way of looking at the situation, but that’s what the laws in most states (including Pennsylvania and New Jersey) say.

 

Fourth, What Damages Could Be Collected In A Judgement Enforcement Proceeding?

 

As you can see, the value of a wrongful death case isn’t a single number, it is really the sum of many discrete components. But there’s one number that can’t be ignored: how much can realistically be collected from the defendant or their insurance company?

In wrongful death cases against Fortune 500 companies, like crashworthiness cases against car manufacturers or tire defect cases against tire manufacturers, “collectibility” isn’t really an issue. We know that the company has the funds to pay any judgment entered against it.

But in many cases, the issue isn’t so simple. In Pennsylvania, for example, physicians are only required to have $1.2 million in medical malpractice insurance, and hospitals are allowed to have limited insurance policies that can be “exhausted” by multiple claims in a given year. It doesn’t matter how well-paid doctors are or how profitable hospitals are: in bankruptcy, malpractice judgments are usually “dischargeable,” which means the defendant can go into bankruptcy, have the debt wiped away, and then go right back out of bankruptcy. We’ve seen it before.

As another example, the majority of individual drivers have car insurance policies with less than $100,000 in tort liability coverage, and the majority of homeowners have less than $500,000 in personal and premises liability coverage. Like with malpractice awards, negligence awards are typically dischargeable in bankruptcy – with limited exceptions, like for drunk driving accidents – and so it does the client no good to try to litigate for years to enforce a judgment that will never be collected. In each case, we take a close look at the available insurance policies, the assets the defendant really has, and we advise our clients how to interpret that information to come up with a reasonable settlement demand.

 

Summing Up Wrongful Death Damages

 

Whole books have been written about proving damages in court, and wrongful death cases present some of the most challenging damages of all. For our wrongful death cases, we spend hundreds of hours preparing, in as much detail as possible, the full scope and extent of damages, so that we can build up each and every one of those discrete components that makes up a wrongful death and survival award.

Since 1958, The Beasley Firm has fought hard for wrongful death survivors, obtaining over $2 billion in jury awards and settlements, $1 billion of it in wrongful death cases. If you lost a loved one and suspect negligence or malpractice was involved, contact our wrongful death lawyers for a free and confidential consultation.

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