Illinois Appellate Court Delivers Illinois Defense Bar A Double Whammy On Damages: McIntyre v. Balagani, 2019 IL App (3d) 140543
The Illinois Appellate Court’s Balagani opinion shows the leeway accorded plaintiffs in maintaining claims for a decedent’s loss of future income and services. It also puts defendants between the proverbial “rock and a hard place” in trying cases involving soft damages for loss of society and companionship.
This was a medical malpractice wrongful death action. Decedent was 48 years old at the time of his death in 2009 and left behind a wife, an adult daughter by a previous marriage, and three other minor children. A verdict was rendered in favor of decedent’s wife who brought the action as administrator of the estate, with the jury awarding $1.1 million dollars for loss of future income, and $500,000 for loss of society and companionship.
The Lost Future Income Claim
Decedent worked at an insurance carrier for 23 years, working his way up to become vice president. But it was decedent’s “dream” to own his own printing business. Decedent began his “dream” in 2007, leaving his employment and setting up his own business. The evidence showed only modest growth in 2008 and decreased growth in 2009 and plaintiff never called her expert economist who could have established more specific and less speculative growth projections. Plaintiff’s counsel blackboarded $1.25 million as an appropriate lost future income amount.
Defendants relying upon the “new business rule”, which Illinois courts have applied in cases where a plaintiff claims damages resulting from the loss of a new business, argued that the jury’s $1.1 million dollar award could not stand because there was no reasonable certainty about how much future income would ever be derived from decedent’s “dream” of running his own print shop.
The Appellate Court rejected this use of the “new business rule” in a wrongful death personal injury case, holding that Illinois law presumes that decedent’s next of kin sustained some substantial pecuniary loss by reason of his death. The court focused on evidence showing decedent’s “industriousness, initiative, ingenuity…including his ability to solicit clients and build and grow a business as all supporting the jury’s award of $1.1 million for lost future income. The Appellate Court specifically ruled that the jury didn’t need hard economic evidence to make a personal injury award…” it was entitled to consider [decedent’s] future earnings potential based upon his general abilities, industriousness, work habits, and his lifetime history of providing for his family.’
Loss of Society and Companionship
Plaintiff sought a new trial on damages alone, claiming that the verdict of $500,000 was grossly inadequate. The Appellate Court agreed and remanded the case back for a new trial on that element of damages.
Plaintiff’s evidence of loss society and companionship fit the usual pattern as seen these cases…decedent was the salt of the earth—“a loving and devoted husband and father who was actively engaged in his children’s lives.” Plaintiff testified that decedent was her “best friend”, “soul mate”, the man who she would spend the rest of life with. Besides plaintiff’s testimony on how great a guy decedent was with her and all the kids, decedent’s adult daughter by a previous marriage, as well as the plaintiff’s three minor children testified as well, all giving the usual heart wrenching testimony about how great decedent was to everyone and how he will be missed…for example the youngest daughter testified “she no longer laughs as much” since decedent died. According to the Appellate Court, the evidence presented by plaintiff showed that decedent was a “loving, caring, and dedicated father who was very involved in all aspects of his children’s lives (educational, athletic, moral, recreational)”. Significantly, the Appellate Court found that defendants presented no evidence to rebut plaintiff’s evidence of loss of society and thus the unrebutted evidence showed that plaintiff and her children suffered a “substantial loss”. And despite the deference that Illinois appellate courts ordinarily gives to a jury’s determination of damages—especially non-economic loss—the Appellate Court found that $500,000 was just too paltry of a sum to divide up among five survivors.
Learning Point: This is a very troubling decision.
The Court’s action in overturning the $500,000 is shocking. It’s obvious that what the Appellate Court did not like here was the fact that the defendants had the benefit of a conservative jury awarding a conservative amount for “soft damages” instead of the typical Illinois sympathetic, runaway jury making an award in the millions of dollars. The court’s action puts the defense bar in a tough spot: do nothing and hope for a conservative jury…but if it’s too conservative a jury as here, you won’t be able to sustain the award on appeal because plaintiff’s evidence will be unrebutted. Or attack the plaintiff’s loss of society case, and risk antagonizing the jury leading them to rule against you on liability and/or award an even greater amount against the defendant—which will in all likelihood just be affirmed on appeal.
More can be done in attacking future income claims, though.
The $1.1 million verdict for lost future income was pulled from thin air…it was based on nothing more than the decedent “had a dream”, and he was going to make that dream happen. If defendants want to build a case to take to the jury and up to the appellate court, they have to have their own experts in there testifying, instead of like this case…not just saying that plaintiff did not have her expert support the award. That’s not going to cut it in the Appellate Court for the defense bar as shown by Balagani.