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The wrongful deaths of Madison County.

On May 31, Illinois Governor Rod Blagojevich signed into law House Bill 1798, allowing juries to award damages to the surviving heirs of a wrongful death claimant for grief, sorrow and mental anguish, which will likely further escalate the already elevated tort damages corporate defendants face in long-standing "judicial hellholes" such as Madison County, Illinois.

Prior to the enactment of House Bill 1798, Illinois courts had specifically prohibited juries from considering grief, sorrow and mental anguish of the surviving heirs of the wrongfully deceased person because it was felt they were not a "pecuniary injury," under the Wrongful Death Act, which had governed "just compensation" for wrongful death torts since it was enacted in 1853.

The term "pecuniary injuries" has been defined as a loss or injury able to be assigned a monetary value. Illinois courts have struggled over the years with defining what types of injuries are considered "pecuniary injuries" compensable under the Wrongful Death Act.

Over the course of 154 years of jurisprudence, however, plaintiffs have been successful in convincing courts that the loss of companionship, guidance, advice, love and affection of the deceased are capable of being assigned monetary value, and now, with the enactment of House Bill 1798, the plaintiffs' bar has been successful in adding to the already broad and subjective factors for a jury to consider.

What is the practical effect of the enactment of House Bill 1798? Consider the potential liabilities in a wrongful death case in the arena of asbestos litigation. The harsh reality of the disease mesothelioma is that it is a terminal illness. Most individuals with the disease have a very limited prognosis of two years from the date of diagnosis. Therefore, many plaintiffs with mesothelioma will either be deceased at the time their case is filed or will pass away during the pendency of the litigation.

With the addition of grief, sorrow and mental anguish as pecuniary injuries, the potential for higher wrongful death awards increases significantly because now not only will the jury hear of the suffering of the deceased person prior to death, but they will also hear of the grief, sorrow and mental anguish of the surviving heirs and next of kin of the deceased person.

In the past four years before the enactment of this law, wrongful death jury awards averaged between $3 million and $4 million in Illinois, with some exceeding $27 million. It remains to be seen what tangible effect the new elements of damages will have upon wrongful death cases in Illinois, given the propensity for high awards that already exists in some jurisdictions.

But the potential for higher verdicts and increased insurance premiums should be a concern for small businesses and large companies alike. All eyes will now be on the Illinois courts to obtain some guidance as to what evidence will be permitted on the issue of grief, sorrow and mental anguish, and as to how judges will instruct juries to weigh these concerns in the determination of their awards.

Jeff S. Hebrank is president of the Illinois Defense Trial Counsel and a partner with the firm of Hepler, Broom, MacDonald, Hebrank, True & Noce, LLC, of Edwardsville, Illinois in Madison County.
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Title Annotation:FORE FRONT; Wrongful Death Act
Author:Hebrank, Jeff S.
Publication:Risk Management
Geographic Code:1USA
Date:Dec 1, 2007
Words:531
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