The Illinois Supreme Court Introduces New Element of Compensable Damages: Shortened Life Expectancy

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1 Illinois Association of Defense Trial Counsel Springfield, Illinois IDC Quarterly Volume 18, Number 4 ( ) Feature Article By: Brian T. Gravdal SmithAmundsen LLC The Illinois Supreme Court Introduces New Element of Compensable Damages: Shortened Life Expectancy In May 2008 the Supreme Court Committee on Jury Instructions in Civil Cases introduced civil jury instruction number (IPI (Civil) No ), entitled Measure of Damages Shortened Life Expectancy. The establishment of this new instruction creates a new measure of damages which may be sought by a party, assuming there exists evidence to substantiate such damages. According to the Notes on Use, the instruction is appropriate if there is evidence that plaintiff s life expectancy has been shortened by the tort. The Notes also indicate that the instruction should appear as a separate element of damages on the verdict form. It also may be used in cases where the court also instructs on disability or loss of normal life, where such evidence is present. Finally, the Notes suggest that the instruction should be given by the court in conjunction with instruction number ( Damages Arising in the Future Extent and Amount ). Historically, this element of damages has been rejected by a majority of American courts. See, e.g., Downie v. United States Lines Co., 359 F.2d 344, 347 (3 rd Cir. 1966), cert. denied, 385 U.S. 897 (1966); Burke v. United States, 605 F. Supp. 981, 988 (D. Md. 1985); Rhone v. Fisher, 224 Md. 223, 167 A.2d 773 (1961); McNeill v. United States, 519 F. Supp. 283, 289 (D.S.C. 1981). However, the Committee s explicit recognition of shortened life expectancy as a compensable measure of damages can reasonably be construed as consistent with a more recent trend, in which various jurisdictions are allowing recovery for this specific type of future injury. See, e.g., Swain v. Curry, 595 So. 2d 168, (Fla. Dist. Ct. App. 1992); Knopfer v. Louisiana Patient s Compensation Fund, 527 So. 2d (La. Ct. App. 1998); Morrison v. Stallworth, 73 N.C. App. 196, 326 S.E.2d 387 (N.C. Ct. App. 1985); Davison v. Rini, 115 Ohio App. 3d 688, 686 N.E.2d 278 (Ohio Ct. App. 1996). Jurisprudential Background Supporting the Establishment of IPI The Comment to instruction number indicates that a measure of damages for shortened life expectancy is supported by the Illinois Supreme Court case of Dillon v. Evanston Hospital, et al., 199 Ill. 2d 483, 771 N.E.2d 357 (2002). In Dillon, the plaintiff brought a medical malpractice action against Evanston Hospital and Dr. Stephen Sener. During the course of treatment for breast cancer, Dr. Sener surgically inserted a catheter into a vein in the plaintiff s upper chest under the clavicle. The purpose, in part, was to provide a means to administer chemotherapy. Dillon, 199 Ill. 2d at 488. After the plaintiff completed chemotherapy, the catheter ceased to function, and Dr. Sener removed it. Unbeknownst to the plaintiff or Dr. Sener the catheter was not removed in its entirety; a catheter fragment remained in the plaintiff s body. Id. Later, the plaintiff had a routine chest x-ray, which revealed that the catheter fragment had migrated to the plaintiff s heart. The tip of the fragment was embedded in the wall of the right atrium or the right ventricle. Id. at Based on the majority of medical opinions she received, plaintiff decided to leave the catheter fragment in her heart. Id. She thereafter filed suit. Page 1 of 5

2 On appeal, the defendants contended that the trial court erred in instructing the jury that it could award the plaintiff damages for the increased risk of future injuries. The supreme court reversed, holding that the instruction given was inadequate for a number of reasons. However, the court also held that compensation for the increased risk of future injury is a recognized element of compensable damages. In so holding, the court discussed the principle underlying the recognition of such damages. The court stated: An entire claim arising from a single tort cannot be divided and be the subject of several actions, regardless of whether or not the plaintiff has recovered all that he or she might have recovered. This is true even as to prospective damages. There cannot be successive actions brought for a single tort as damages in the future are suffered, but the one action must embrace prospective as well as accrued damages. The single recovery principle requires that all damages, future as well as past, must be presented and considered at the time of trial. Dillon, 199 Ill. 2d at 502. Consistent with this single recovery principle, the court held that a plaintiff must be permitted to recover for all demonstrated injuries. The burden is on the plaintiff to prove that the defendant s negligence increased the plaintiff s risk of future injuries. Id. at 504. The court continued, [a] plaintiff can obtain compensation for a future injury that is not reasonably certain to occur, but the compensation would reflect the low probability of occurrence. Id. While the Dillon court did not specifically discuss the question of damages for shortened life expectancy, it did unequivocally endorse the single recovery principle, which apparently provides the legal underpinnings for the recognition of a measure of damages for shortened life expectancy. In other words, it seems instruction is a progression of the policies expressed in Dillon. In addition, a plaintiff s burden with respect to would be consistent with the burden announced in Dillon, i.e., the plaintiff must prove that his or her shortened life expectancy is causally related to a defendant s negligence. It appears as well that a plaintiff would have to prove that it is reasonably certain that his or her life will be shortened by the proximately related negligent acts of the defendant. It should be noted, however, that even if a plaintiff cannot prove a shortened life expectancy is reasonably certain to occur (i.e., proven probability is greater than 50%), he or she can still recover damages commensurate with the probability proven, even if such probability is low. It could conceivably be argued then that a plaintiff can recover damages for shortened life expectancy, even if the amount is de minimis, by offering evidence tending to prove a greater than zero percent likelihood of a risk of shortened life expectancy. This proposition is not at odds with the policies which guide IPI and IPI In addition to Dillon, the Committee cites a dissenting opinion by Judge Posner in DePass v. United States of America, 721 F.2d 203 (7 th Cir. 1983). The dissent in DePass is apparently referenced only to shed additional light on the policies guiding the new measure of damages recognized by instruction In his dissenting opinion, Judge Posner cites numerous extra-jurisdictional cases which he argues suggest a trend toward allowing compensation for a reduction in life expectancy. Judge Posner also opined: A tortfeasor should not get off scot-free because of instead of killing his victim outright he inflicts an injury that is likely though not certain to shorten the victim s life. DePass, 721 F.2d at 208. Finally, the Committee cites with approval Bauer v. Memorial Hospital, 377 Ill. App. 3d 895, 879 N.E.2d 478 (5 th Dist. 2007). In Bauer, the plaintiffs filed a medical malpractice action, alleging that the defendants were responsible for causing, or contributing to cause, brain damage and other injuries to the plaintiffs minor son due to the defendants failure to recognize and/or adequately treat the child s hypoglycemia. Bauer, 377 Ill. App. 3d at 898. Over the defendants objections, the trial court gave several instructions on the issue of decreased life expectancy. While not citing any Illinois case law which directly governs whether a plaintiff can recover damages for decreased life expectancy in a non-wrongful death case, the Bauer court did cite favorably to Dillon. Ultimately, Bauer stands for the following proposition: Page 2 of 5

3 It is logical to recognize... that life itself has value and that a defendant should be required to pay damages for wrongful conduct that reduces a plaintiff s life expectancy. A defendant should not be allowed to benefit from a reduction in a plaintiff s damages due to a decreased life expectancy when it was the defendant s wrongful conduct that caused the decreased life expectancy. Accordingly, we hold that damages for a decreased life expectancy are proper where a plaintiff can prove that his life expectancy is decreased as a result of the defendant s negligence. Bauer, 377 Ill. App. 3d at Jurisprudential and Philosophical Considerations There are two important issues which will be inextricably intertwined with a claim for damages associated with shortened life expectancy causation and valuation. While these questions are certainly involved in most, if not all litigation contexts, such issues are particularly complex in the area of future damages. Moreover, the Byzantine nature of causation and valuation in the context of IPI will certainly engender in the lay jurist conjecture at best, and guesstimates at worst. Because the issue of recoverable damages for shortened life expectancy is relatively new in Illinois, if not essentially a question of first impression, it is instructive to consider the contemplations of sister courts who have confronted the difficulties attending such recovery. For example, Indiana is one of the few states to have approved recovery for shortened life expectancy. In a thoughtfully crafted opinion, the Indiana Supreme Court, in Alexander v. Scheid, et al., 726 N.E.2d 272 (Ind. 2000), offered the following thoughts, which should be considered by any practitioner proffering or protesting IPI Philosophically, the question of whether a particular traumatic event in one s life can be presently extrapolated to a shortening of that life is an interesting riddle. Between the time of injury (and perhaps more importantly, the time of award) and the injured person s eventual death, numerous idiosyncrasies belonging to the injured person certainly will have played a role in the nature and timing of death. Leaving aside these individual circumstances, the [injured party s] life expectancy is the median of our collective experience as to the age at death of persons of [the injured party s] age and gender. Alexander, 726 N.E.2d at 282. Stated differently, a life expectancy is no more than the composite of the remaining lives of a large number of people, some of whom will die the next day and some of whom will become nonagenarians. Id. The unavoidable difficulty with ascribing to any injury an amount for shortened life expectancy is that of speculation. It is axiomatic that for a jury to award such damages, it must first determine what the injured person s pre-injury life expectancy was. While this may be easily proven and resolved by normative principles of biostatistics, it is a much more formidable venture or adventure to establish the other half of the equation. Common sense instructs that a person with a normal life expectancy has only a fifty percent chance of reaching that expectancy, and therein lies the elementary debate with any award pursuant to IPI In other words, as the Indiana Supreme Court so nicely stated, [e]ven if we reduce both the before and after numbers to comparables,... expectancy is itself a statistical proposition, and compensating on the basis of expectancy will either overcompensate or undercompensate depending on how long the plaintiff actually lives. Id. Assuming a jury is instructed to compensate an injured person for shortened life expectancy, the lay juror will have assumed a prodigious task. First, he or she must decide whether it is reasonably certain that the injured person s eventual death will come sooner because of the actions of the defendant. Necessarily implicit in this exercise is the jury s collective conclusion as to when the injured person would have died had the injury not occurred. Finally, even if a jury is able to reduce statistical probabilities and individual factors to an equation consisting of pre-injury life expectancy and post-injury life expectancy, the jury will be forced to consider what value to ascribe to the privilege of living. Id. at 283. Page 3 of 5

4 Practical Considerations and Unresolved Questions Leaving aside for a moment more cerebral deliberations, it seems appropriate to discuss several practical considerations related to the introduction of IPI Because the instruction is new, there is a dearth of case law or secondary annotations available for practical guidance. Nevertheless, expediency does provide sufficient support until the issue reaches maturity. As previously discussed, the Supreme Court Committee included in its official Comment a synopsis of case law. What such cases fail to provide, however, is an explanation of the types of evidence or the manner of presenting any such evidence which will substantiate the giving of instruction In Dillon, there was expert testimony to support the attendant risks associated with the catheter fragment remaining in the plaintiff s heart. These risks were infection, perforation of the heart, arrhythmia, embolization and further migration of the fragment. Dillon, 199 Ill. 2d at 496. In Bauer, one of the defendants experts opined that the minor child had a decreased life expectancy because of his inability to maintain cardiovascular fitness as a result of his lack of mobility and exercise, which were a result of his brain injuries. Bauer, 377 Ill. App. 3d at 908. Thus, it appears that expert testimony will be required to carry a plaintiff s burden on whether a defendant s negligent conduct proximately caused injuries which lend themselves to a shortened life expectancy. It should also be noted that both Dillon and Bauer arose in the medical malpractice context. It is not clear at this time whether the same standards would be applicable in other personal injury cases; nor is it yet even understood whether compensation for a shortened life expectancy will be equally applicable or prevalent in other litigated personal injury contexts. In reality, the question of damages for shortened life expectancy will rarely arise, particularly outside the ambit of medical malpractice litigation. Basic economics will more than likely deter resort to the courts to redress remote probabilities or insubstantial diminutions in the likelihood of recovery. Alexander v. Scheid, et al., 726 N.E.2d 272, 282 (Ind. 2000). However, should the question arise, consideration should be given to several unique dynamics, including, but not limited to the following. First, the evidence required to be presented will surely be comprised of expert witness testimony. This begs the question, however, as to what type of expert or how many will be appropriate. Will the plaintiff be required to present the testimony of a biostatistician? Or will testimony from a treating physician be sufficient? Or will a combination of experts be required? Regardless of who offers the pertinent testimony, what qualifications must he or she possess, and what bases will he or she rely upon in forming his or her opinions? Second, assuming testimony from the injured party s treating physician will be sufficient on the question of shortened life expectancy, will treating physicians be competent to offer such testimony? More importantly, will treating physicians be willing to offer an opinion on the subject despite its inherent conjectural complexities? More often than not, a treating physician would hesitate to speculate. Again, considering the infancy of IPI , most, if not nearly all, physicians will lack the requisite qualifications or confidence to offer any useful opinion. Third, a party s pre- and post-injury medical history is, generally speaking, only relevant to the extent it relates to the litigated injuries. However, if a plaintiff is to allege that such litigated injuries will result in a shortened life expectancy, are not the plaintiff s other medical conditions relevant to the questions of causation and valuation? For example, if a plaintiff is severely injured in a motor vehicle accident and in a subsequent suit claims a resulting shortened life expectancy, is it not relevant that the plaintiff also suffers from, e.g., high blood pressure, hyperlipidemia, high cholesterol, or cancer? And, to extend this line of reasoning to its next logical step, does the medical history of the plaintiff s family also become relevant and admissible? Obviously, rules generally governing admissibility will need to be reevaluated, and judges will be asked to draw appropriate boundaries to balance the parties respective interests. Fourth, in addition to the potential broadening of relevancy concepts relating to a party s medical history, it is feasible that other areas of a plaintiff s life, traditionally irrelevant, will become crucially relevant. For example, is the plaintiff a smoker? How much alcohol does the plaintiff consume on a regular basis? Of what Page 4 of 5

5 does the plaintiff s diet consist? Does he or she eat healthy, and does he or she regularly exercise? These are also questions that a jury should consider in evaluating any award for shortened life expectancy. Fifth, if a jury determines, consistent with existing damages concepts, that a plaintiff is entitled to compensation for a permanent disability, should such an award be proportionately reduced to reflect a contemporaneous award for a shortened life expectancy? It would seem incongruous to suggest that the two are not so interrelated. Moreover, does not an award for permanent disability necessarily reflect a jury s calculation as to the injured party s life expectancy? See IPI These and many other questions remain unresolved. It remains to be seen which of these issues will become practically important and which will remain only theoretically important. Only time and experience will tell whether further guidance from the courts or from the appropriate rule-making body or bodies will be necessary to provide additional structure or to harmonize this new concept with traditional civil damages jurisprudence. About the Author Brian T. Gravdal is an associate in the Waukegan, IL office of SmithAmundsen, LLC. He focuses his practice on insurance services, product liability, professional liability, family law, and civil litigation. He also has experience with general tort liability, professional negligence, product liability and secured transactions. Prior to his law career, Brian worked as a Project Manager for a national health insurance entity and in Corporate Operations for a West Coast-based health insurance entity. Brian is licensed to practice in California and Illinois as well as all Illinois and California Courts, the United States District Court for the Central District of California and the Eastern District of California. He is a graduate of the University of Northern Iowa and the Southwestern University School of Law. Page 5 of 5