“Loss of consortium” is a legal claim for damages suffered by the spouse or another immediate relative of a person who has been injured or killed as a result of a defendant’s negligent, intentional, or otherwise wrongful act or acts. The term refers to the deprivation of the benefits of family relationships due to the injuries or wrongful death. While some jurisdictions only recognize spousal consortium (generally meaning sex), others recognize parental consortium (love and affection) and allow children to recover for the death or disability of a parent and vice versa.

In a wrongful death case argued before the Indiana Court of Appeals in July, the three-judge panel heard arguments regarding several of the most basic questions about loss of consortium claims in wrongful death cases. How much compensation is too much for the loss of consortium? What kind of proof should be required for a loss of consortium claim to prevail? How much discretion should a jury have in such cases? And when should a jury’s award for loss of consortium damages be overturned by an appeals court?

WHAT WERE THE DETAILS OF THE CASE?

When Phillip Amsden helped another truck driver change a tire on I-65 in 2010, an impaired driver named Jeffrey Cleary crashed into Amsden’s truck, killing him instantly. Cleary’s blood alcohol content (BAC) level measured three times the legal limit, and he was sentenced to fourteen years on the Class B felony criminal charge of operating a motor vehicle with a Blood Alcohol Concentration level over 0.15 percent.

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Patricia Amsden filed a wrongful death claim against Jeffrey Cleary, and the two bars where Mr. Cleary was drinking. She was represented at the five-day trial by wrongful death attorney Stephen D. Phillips of the Chicago-based Phillips Law Offices. Jurors awarded the Amsden estate $25 million. The award was selected by both Verdict Search and the National Law Journal as one of the top verdicts of 2015.

WHAT WAS THE ISSUE BEFORE THE COURT OF APPEALS?

Before the Indiana Court of Appeals in July 2016, defendants alleged that the jury’s award was based exclusively on emotion, not economic facts. However, Chicago wrongful death attorney Stephen D. Phillips cited precedent that cautions appellate courts from second-guessing jurors’ decisions. Judge Patricia Riley questioned whether the Court of Appeals should even consider overturning the jury’s verdict. “That was the value they put on it,” she said. “Why should we supplant our judgment for the judgment of the jury?”

Responding to the claim that the jury’s award was based exclusively on emotion, Judge James Kirsch said, “Isn’t that true of consortium claims in every case where there’s a loss of spouse? I don’t know what economist is going to come in and quantify the monetary value of the loss of a spouse. So it’s always a very gray area for a jury.”

Chicago wrongful death attorney Stephen D. Phillips disputed the claim that the verdict was the product of emotion alone. “It’s not as though we stood up and we just said ‘Look, he was killed by a drunk who got hammered in two bars and you should give her a lot of money,’” he said. “We spent a lot of time making sure they got evidence to avoid the claim this is all sympathy and we’re just up here tugging at your heartstrings.”

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Attorney Phillips also cited an Indiana Court of Appeals ruling in Ritter v. Stanton (2001). In that case, a jury awarded $55 million for an injury claim that included $12 million for loss of consortium. The Court of Appeals held that when damages cannot be precisely calculated, a jury has the right to make an educated decision regarding the case, and the “Supreme Court of Indiana has said multiple times that appellate courts and supreme courts and trial courts should be very, very, very loath to set aside a jury verdict unless they can find a really good reason,” attorney Phillips added. The case was argued July 27 before Judges Kirsch, Riley, and Rudolph Pyle III.

By: Stephen Phillips

Stephen D. Phillips is the managing partner at the Phillips Law Offices in Chicago. He earned his Juris Doctor from Loyola University in 1985 and his B.A. from the University of Iowa in 1981. He is an extensively published writer and sought-after lecturer on legal topics ranging from medical malpractice to tort reform. Mr. Phillips is also the recipient of a number of awards and honors from various legal and community groups.