Proposed Bill in Illinois Seeks to Amend the Illinois Wrongful Death Statute to Allow for Punitive Damages

by Eli B. Vine

On January 12, 2023, the Illinois House of Representatives member La Shawn K. Ford introduced House Bill 35. The proposed bill amends the Illinois Wrongful Death Act to allow for the recovery of punitive damages in a wrongful death action. 

Presently, punitive damages are not permitted in Illinois wrongful death actions brought by a decedent’s heirs for their own injuries caused by the decedent’s death.  However, if House Bill 35 is signed into law, the statutory amendment will allow heirs of decedents to recover punitive damages in wrongful death actions. 

Long standing Illinois case law has held precluded punitive damages in wrongful death actions.   Marston v. Walgreen Co., 389 Ill. App. 3d 337, 344 (2009). In Marston, Plaintiff filed a wrong death and survival action against Walgreen’s Company and their pharmacists, for negligently prescribing incorrect prescription drugs which Plaintiff claimed resulted in the death of Mr. Leonard Kulisek.  The jury awarded compensatory damages and punitive damages in the amount of $25 million to the independent administrator of Mr. Kulisek’s estate.  The Illinois Appellate Court for the First District held that regardless of Walgreen’s conduct, punitive damages were not permitted as a matter of law under the Illinois Wrongful Death Act.  The Court noted, “actions for punitive damages will not survive the death of the original plaintiff unless the legislature specifically authorizes such action or there are strong equitable reasons for allowing recovery of punitive damages.”  The Marston court did not find any “strong equitable reasons” for allowing punitive damages in that case.

The proposed amendment to the Illinois Wrongful Death Act, if signed into law, will provide the statutory authorization the Marsten court held was lacking.