Illinois statute eliminates ban on punitive damages in death cases

 Back in May I reported that the Illinois General Assembly was considering a bill that would allow plaintiffs to seek punitive damages in cases for Wrongful Death and in cases filed under the survival statute.  In that post I explained why I thought the bill was a good idea (and why the old doctrine it sought to replace was wrong).  See here.

Today, I am here to report that just a few days ago, on August 11, Illinois Governor J.B. Pritzker signed the bill into law.  The new law allows the recovery of punitive damages in wrongful death and survival actions.  

However, as I argued in my previous post, the bill did not go gar enough because punitive damages still are not recoverable in actions against doctors, lawyers, and public entities.

Illinois considers eliminating ban on punitive damages in death cases

I have never been able to figure out the public policy reasons behind the principle of Illinois law that holds that the right to seek punitive damages for personal injuries does not survive the death of the injured party.  This means that punitive damages are not recoverable in actions brought pursuant to the Illinois Wrongful Death Act and the Survival Act.  I first wrote about this anomaly back in 2011.  See here.

I call this Illinois rule an anomaly because I don't know of any other jurisdiction that recognizes the right to seek punitive damages in some cases but not in death cases.  

I also call it wrong because the policy results in a perverse incentive to cause more harm rather than to deter wrongful conduct, which is one of the main goals of tort law.   

Thankfully, after all these years, it is possible this wrongheaded policy might be partially abandoned.  

The Illinois General Assembly is currently considering a bill that would allow plaintiffs to seek punitive damages in cases for Wrongful Death and in cases filed under the survival statute.  You can read the bill here.

Unfortunately, the bill does not go far enough because it still recognizes an exception for medical and legal malpractice cases.  This means that plaintiffs who seek to recover for the death of a decedent will not have access to punitive damages regardless of the degree of negligence or reprehensibility of the conduct of the defendant.  

This should change too.  But we are moving in the right direction, even if we are doing it one slow step at a time.  (The bill also recognizes an exception for claims against the state, but that is not unusual.  The Federal Torts Claim Act, as well as typical state versions, do not recognize a right to punitive damages in claims against the state.)

Not surprisingly, organizations dedicated to advocating for the interests of those whose conduct puts others at risk and causes injury, and their insurers, are not happy about this development.  Lacking sound policy arguments, as usual, they resort to using insults and exaggerations, calling the proposal a “calamity,” and a “shameless attack on businesses” and referring to the state a “judicial hellhole.”  See this post by the American Tort Reform Foundation, for example.  

I do agree with the ATRF that the exception for medical and legal malpractice cases does not make sense, but the solution to that disparity is not to reject the proposal altogether, thus depriving the plaintiffs of all access to recovery, but rather to eliminate the exception and thus to provide access to justice to those who deserve it.  After all, punitive damages are awarded in a very small minority of cases anyway.

UPDATE August 15, 2023:

Illinois statute eliminates ban on punitive damages in death cases

Embassy Bomb Victims Ask Supreme Court to Reinstate Punitive Damages

The Foreign Sovereign Immunities Act. Enacted of 1976 was enacted to protect foreign countries from being hauled into U.S. courts as defendants in actions for damages. However, the law was amended to allow plaintiffs to sue in cases of alleged terrorist activity. 

Last Monday, the attorney for the plaintiffs in case based on the allegation that Sudan supported a pair of embassy bombings in Kenya and Tanzania, argued that the 2008 amendments to the statute also opened so-called state sponsors of terrorism up to the possibility of punitive damages.

Courthouse News has details here.

Missouri tort reform advocates move toward creating limits for punitive damages

Fresh off major wins in the 2019 session, Missouri tort reform advocates are shifting their focus to a new target: punitive damages. Following a string of large punitive damages awards from St. Louis City courts, legislators in both chambers introduced bills to sharply curb such claims.  For more information go here.

Judge Determines Johnson & Johnson Should Be Required to Pay $6.8M in Punitive Damage For Failing to Warn About Risperdal Risks

In a ruling issued last week, the judge presiding over a product liability action against Johnson & Johnson, reduced the award of punitive damages granted by the jury to $6.8 million, which is 10 times the amount of compensatory damages which is generally held to be the upper threshold for punitive damage awards that are constitutionally permitted.  The jury had originally awarded $8 billion in punitive damages.  Go here for more details on this story.

US Supreme Court to decide another maritime law tort case this term

About a week ago, the US Supreme Court heard oral arguments in a case called The Dutra Group v. Batterton, which asks the Court to decide whether a seaman can recover punitive damages in a personal injury suit based on the unseaworthiness of a vessel on which he was working.   The SCotUS blog has an analysis of the oral argument here.  You can also review all the relevant documents in the case and links to more information here.

Court of Appeals finds Tennessee punitive damages cap unconstitutional

A divided panel of the Court of Appeals for the Sixth Circuit recently held that the Tennessee statute capping punitive damages is unconstitutional.  Courthouse News Services has the story here.

More bad news for victims of medical malpratice; more tort reform bills, this time in Iowa -- UPDATED

For almost two months now all my posts have been about medical malpractice reform bills.  Today's update comes from Iowa where the state Senate has passed a tort reform bill (Senate File 465) which  includes provisions capping awards for non-economic damages at $250,000, requiring a "certificate of merit" to screen out litigation and establishing standards for expert witnesses.  There is more on the story here.

Apparently, the reforms were based on the discredited argument that they are needed to either keep doctors from leaving the jurisdiction or to attract doctors to the jurisdiction, an argument that is not supported by available empirical evidence.   Also, the provision regarding "certificates of merit," as usual, was supported by the argument that it is a good way to screen out frivolous litigation.  And, again, this argument is misleading because even though it may have that effect, the real goal of the provision is to make it more difficult for plaintiffs to be able to bring non-frivolous litigation.  There are plenty of other mechanisms in place already that prevent frivolous litigation.

UPDATE (4-15-17):  The TortsProf blog is reporting that the Iowa House has now passed the med mal reform bill, but fortunately, it was amended so it is not as bad as originally proposed.  The amendment eliminated the "hard cap" and created an exception that would allow juries to make awards of more than $250,000 in cases of “substantial or permanent loss or impairment of bodily functions and substantial disfigurement.”  Because of the this amendment, the House bill and the Senate bill will have to be reconciled.

UPDATE (4/28/17):  The Senate passed a new bill adopting the House's version.  The bill now goes to the governor who is expected to sign it.  More on the story here.

UPDATE (5/8/17):   Last Friday, Iowa Governor Terry Branstad signed into law a bill for med mal cases requiring a certificate of merit and capping non-economic damages at $250,000 except in cases involving permanent impairment, disfigurement, or death.  The Des Moines Register has the story.  (Thanks to the TortsProf blog for this update.)

Update on Congress' work on med mal tort reform

Earlier this month, I wrote a note about efforts in Congress to pass tort reform bills that could have seriously negative/damaging effects on the ability of victims of medical malpractice to recover for injuries.  Today, the PopTort has an update here. The article is called "Congress Moving to Protect Doctors Who Abuse and Assault Children."  It sounds like an exaggeration, but if you read the article you'll see why it is not. 

Tort reform efforts under way in Congress

Now that Republicans control the Senate, the House and the White House, it is not surprising to hear about new efforts to interfere with the rights of injured plaintiffs in the name of tort reform.  Recently, the House Judiciary Committee approved legislation capping damages in medical malpractice cases.  The vote was 18-17.  The federal legislation would cover individuals who are insured under Medicare, Medicaid, veterans or military health plans, and the Affordable Care Act, and could also impact people covered under COBRA or health savings plans.

Given that medical errors is now the third leading cause of deaths in the US, this is very important stuff.

The bill is based on the false premises and allegations that have been proven wrong time and time again, but that continue to be used in support of attempts to make it more difficult for injured victims to be able to recover for their injuries.  Some of these myths include the allegation that litigation costs result in more expensive services and higher insurance costs.  For a lot of information on these types of allegations and the studies that refute them you can go to the medical malpractice and tort reform sections of this blog and scroll down.  For a short critique of the house bill go here.

For more information about this and other attempts to push “tort reform” bills through the Republican-led Congress which seek to limit the rights of victims  while protecting large corporations and insurance companies go to  AboutLawsuits.

Update on tort reform in Arkansas -- UPDATED

Feb. 20, 2017:   About 10 days ago, I reported on the tort reform efforts in Arkansas (see below).  Here is an update, as reported in the TortsProf blog: The Arkansas Senate voted 21-10 to send a proposed constitutional amendment involving damage caps to the House for further consideration.  Given that 53 of the 100 members of the House are co-sponsors, it has a good chance of passing.  If the House approves the proposal, it will be on the ballot in the 2018 general election.  Arkansas Online has the story; more coverage here.

UPDATE (3/5/17):  The TortsProf blog has updates here and here.  The house bill doubled the amount of the proposed cap on non economic damages to $500,000.  That's the good news.  The bad news is that a cap is still a cap.  The new bill must now pass both houses.

Tort Reform efforts in Arkansas; bad news for victims

As reported in the TortsProf blog:

You may recall that last fall the Arkansas Supreme Court struck down a tort reform ballot initiative.  It's back.  The Arkansas Times reports:

A proposed amendment to the Arkansas Constitution filed last week in the Senate seeks to limit the amounts that can be awarded to claimants in civil actions, such as medical malpractice lawsuits. If Senate Joint Resolution 8 is approved by the General Assembly — and with a long list of co-sponsors, it seems likely to pass — it would appear before voters on the 2018 ballot. Sen. Missy Irvin (R-Mountain View) is the lead sponsor.

Like the so-called "tort reform" measure on the 2016 ballot (which was disqualified by the state Supreme Court not long before the election), SJR 8 would place a cap of $250,000 on noneconomic damages, meaning compensation for hard-to-quantify personal losses such as pain and suffering. The proposed amendment also places a cap on punitive damages, though that ceiling is more flexible. But SJR 8 also would give the legislature control over the rules of pleading, practice and procedure in the judicial branch, thus taking power away from Arkansas courts and giving it to the General Assembly.

Arkansans to vote on possible med mal reform: limits to punitive damages and limits on fees

TortsProf blog is reporting that the Arkansas' attorney general recently approved the wording of a proposed ballot item to amend the constitution that would instruct the state's legislature to set a cap on punitive damages in med mal cases at no less than $250,000, to be adjusted for inflation every 2 years. 

Long time readers of this blog know I am opposed to caps in general, and caps on punitives in particular make little sense to me.  Punitive damages are meant to be used as a strong deterrent for particularly bad conduct.  The imposition of punitive damages is actually very rare, but when used by juries they are used to send a clear message.  They are also meant to be punitive.  They are supposed to hurt.  These goals are best met if punitives are unpredictable.  Once the defendants know what they punitives are likely to be, they can start calculating the risk and using a formula to count them as a cost of doing business. I am not sure what the wording at issue here is going to be or the final effect, but if it results in making the possible amounts imposed as punitives predictable then I'd say it is a bad idea.

Another aspect of the ballot item is to limit how much plaintiffs attorneys can charge their clients.  This, as usual, is an attempt to make it more difficult for victims to find legal representation, which will in turn benefit those who caused the injuries.  Reportedly, the new measure will ban lawyers from charging more than one-third as a contingency fee.  This does not sound like much but it can make a difference in some cases.

With the approval, the sponsor can begin gathering the 84,859 signatures needed to place the proposal on the November ballot. 

Plaintiffs suing General Motors over faulty ignition switches can seek punitive damages despite GM's reorganization after bankruptcy

Back in May I wrote about the possibility that a large number of lawsuits filed against General Motors could be dismissed following a ruling blocking lawsuits filed against GM over actions that predate its 2009 bankruptcy, declaring that “New GM” and “Old GM” are two different companies and that the new company is not liable for the actions of the old one.  The back story on that is here, here and here.  But the Chicago Daily Law Bulletin is reporting now that "[a] federal bankruptcy judge has ruled that people suing General Motors over faulty ignition switches can seek punitive damages that could cost the company millions of dollars or more.  When General Motors emerged from a 2009 bankruptcy, it became known as “New GM.” The new company essentially was shielded from liabilities of the old company that was left behind.  But Judge Robert Gerber in New York ruled Monday that employees and knowledge transferred from the “Old GM” to the new company. Plaintiffs, he ruled, can seek punitive damages if they can show that “New GM” knew of the faulty switches but covered it up."

Missouri Supreme Court holds punitive damages cap is unconstitutional

This week, the Missouri Supreme Court issued a unanimous decision striking down that state’s $500,000 punitive damages cap as it applies to any common law claim.  Here is a comment praising the decision and here is one criticizing it.  The case is called Lewellen v. Franklin.

More on GM's hiring of Ken Feinberg

Yesterday I posted a short comment (with some links) on the fact that GM has announced it has hired Ken Feinberg to discuss the possibility of setting up a claims fund for victims of injuries caused by GM defective cars. I also posted some links to comments criticizing Feinberg's work with other similar funds.  Here is another comment on the subject I forgot to include.  It describes and criticizes Feinberg's work on the BP oil spill case.

GM has hired Kenneth Feinberg to discuss possibility of handling a compensation fund for victims of injuries due to defective cars

GM has retained Kenneth Feinberg, the lawyer who has overseen compensation funds for victims of many high-profile cases to explore the possibility of establishing a fund to compensate victims of injuries due to defective cars. The Chicago Tribune has more.

Not too long ago, Feinberg was severely criticized for his handling of the BP oil spill fund.  In fact, at one point a federal judge ruled that it was misleading for Feinberg to call himself "neutral" or "independent" in administering BP's oil spill victim compensation fund.  Go here, here, here and here for comments and links to the debate on Feinberg's work.    

It is, of course, not surprising that GM is contemplating creating a compensation fund.  This type of arrangement is very advantageous for companies that cause mass injuries.  By creating a fund and providing an aggressive policy to distribute compensation the company can get claimants to waive their right to sue and give up the chance to pursue punitive damages, thus minimizing its exposure.

The move to create a compensation fund, however, is only one part of GM's "one-two punch" approach to the crisis.  The other punch is its attempt to be declared immune from liability for injuries that happened before some time in 2009, when the current GM came out of bankruptcy.

Texas fertilizer plant has only about $1 million in insurance to pay for $100 million in damages it caused

Read the full story here.   If there was a case for punitive damages, this was it.  Yet, thanks to the type of de-regulation, lack of regulation Republicans like Rick Perry favor, victims are not likely to recover much if anything at all.

The impact of tort reform on nursing home abuse cases in Wisconsin

The PopTort is reporting today on a new report by the nonprofit Wisconsin Center for Investigative Journalism  about the impact of Wisconsin’s new nursing home “tort reform” law.  According to the article, the recently adopted tort reform initiatives make it extremely difficult for families to sue on behalf of their abused or neglected relatives.  One interesting aspect of the laws is that they prohibit plaintiffs from using any state investigation records as evidence in a lawsuit.  Also, they make it extremely difficult for plaintiffs to recover punitive damages even against grossly negligent defendants.  Go here for the short article and some links to more information.

Tennessee Senate rejects tort reform bill

Day on Torts is reporting that the Tennessee Senate Judiciary Committee has voted to reject a tort reform bill that would have eliminated liability for punitive damages for employers for conduct of their employees (with a few exceptions).