For in-house counsel concerned about managing their liability, Illinois’ recent expansion of wrongful death damages may seem like a step in exactly the wrong direction. But fear not, say both sides of the trial bar: Effectively, HB 1798 may turn out to be mainly a cosmetic change.

The bill, which Gov. Rod Blagojevich signed into law May 31, amends the state’s Wrongful Death Act to allow plaintiffs to recover damages for grief, sorrow and mental suffering–non-economic harms. It brings Illinois law into line with 23 other states that allow grief and sorrow damages in wrongful death cases. Previously, the law allowed Illinois plaintiffs to claim only “pecuniary” losses related to a death, such as loss of the decedent’s wages or funeral costs. Courts had expanded the definition of pecuniary damages broadly enough to include damages for “loss of society,” but Illinois juries were still specifically instructed not to consider the plaintiff’s grief in their decisions.

Like all legislation related to tort law, HB 1798 was subject to heavy criticism from reform advocates who argued the law would harm businesses and the Illinois economy. The Illinois State Medical Society suggested in a letter to Blagojevich that the bill would decrease access to healthcare in Illinois by driving up malpractice insurance premiums; trial lawyers responded by pointing out that the bill merely puts bereaved parents on equal footing with bereaved pet owners, who have been able to collect non-economic damages since 2003.

But now that the law is effective, both sides agree: While the admissibility of grief may give plaintiffs an edge in arguments, that advantage will have little effect on defendants’

financial costs.

“It may have an impact, in that people can do explicitly what they’ve been doing implicitly in cases for a long time,” says Philip Harris, a partner at Jenner & Block in Chicago. “[But] this has no impact on the most critical element of the case, which is the liability.”

Liability v. Damages

Some Illinois attorneys argue that the amended law will actually clear up juries’ understanding of what damages are permissible in wrongful death cases.

“I don’t think it’s a big monetary difference, but I think it’s a big difference in terms of the jury understanding what the loss is,” says plaintiffs’ attorney John Nisivaco of Chicago’s Dolan & Nisivaco, chair of the tort law section for the Illinois State Bar Association.

That’s because juries were effectively handing out non-economic damages already under the eight categories of “loss of society” that were allowable. Now, Nisivaco says, trial lawyers get to say explicitly what they had tried to argue more subtly all along. Thus, he predicts that juries will be less confused about what harms they may consider when determining damages.

Harris says any case with a witness who could show a close relationship

with the deceased was a concern even before May 31.

“We’re always sensitive to whether or not there are attractive witnesses who will support a claim,” he says. “This doesn’t change that.”

Furthermore, Harris says, the new law expands damages, not liability itself. If defense attorneys are doing their job right, he says, an expansion of damages could be irrelevant.

“Wrongful death cases with good plaintiffs are won, like most cases, on the basis of liability, not damages,” he says.

But a potential increase in damages is nothing to sneeze at, according to Jonathan Bunge, a partner in Kirkland & Ellis’ Chicago office. By definition, non-economic damages aren’t tied to a specific range of numbers, the way funeral costs or lost wages are. That makes it trickier to evaluate a lawsuit, and by extension, how to defend it.

“It’s hard to peg precisely an amount of money that compensates somebody for that type of injury,” he says. “[Grief and sorrow are] hard to lay out with any specificity. It gives juries a lot of discretion.”

Calculating Grief

Another potential problem with the new law is its effect on medical malpractice cases. Defendants may have cause for concern because some believe the new law could allow plaintiffs to skirt Illinois’ cap on medical-malpractice damages.

And Bruce Kohen of Chicago, the president of the Illinois Trial Lawyers Association, also suggests the expansion of wrongful-death damages may increase the amount of litigation plaintiffs file in Illinois. Kohen, a partner at Anesi, Ozmon, Rodin, Novak & Kohen, says he and his colleagues may now be able to file more cases that don’t involve significant financial or loss-of-society damages.

In the past, a wrongful death case for the death of a young child, for instance, was not usually viable for contingency-fee attorneys because families don’t lose income or much companionship with the loss of a baby. Without enough potential damages to offset the cost of bringing the case to trial, some attorneys may turn down otherwise viable cases.

“There are many times when the anguish and the grief and the sorrow of the family is clearly the most significant damage,” he says.

But smart defense attorneys can minimize their exposure under the new law by planning ahead.

“The way corporate counsel need to deal with this now is they need to … incorporate this as a bullet point in the early evaluation process,” Harris says. “When you’re looking at the case early on, you need to include a separate category for the grief of [survivors].”

Because Harris’ practice sometimes takes him to states where grief and sorrow are already admissible, he regularly factors these damages in for many clients and expects to do the same for the in-house lawyers he works with

in Illinois.

“They should look at this as an element of damages independent from the rest of the case,” he says. “You need to take a look at the states where these kinds of claims have been allowed, and you need to assess what kind of impact is allowed on the settlement.”