I was recently asked to give a lecture at a national conference for trial lawyers regarding damages for surviving spouses in wrongful death cases. Many states limit recovery in such cases to economic damages only (i.e., medical expenses, lost wages, etc.). Fortunately, Massachusetts is a state with a statute of limitations governing the recovery to the estate and next of kin for the loss of a family member due to another’s negligence, and which provides for damages to the surviving next of kin for the value of the loss suffered.

No amount of money could ever be said to equal the value of any person. However, a jury which finds a defendant(s) liable in a wrongful death case in Massachusetts will be asked to render a monetary award to the next of kin for “the fair monetary value of the decedent to the persons entitled to receive the damages recovered… including, but not limited to, compensation for the loss of reasonably expected “net income, services, protection, care, assistance, society, companionship, comfort, guidance, counsel and advice of the decedent.” Mass. Gen. L. c. 229, §2.

In a case involving the death of a spouse, we as attorneys must first get to know our client and, by extension, his/her deceased spouse. The wrongful death trial is very much about the life of the decedent. In trying the case, we want the jury to know who that person was, and why his or her death amounts to such a profound loss for the plaintiff. Because we are often not contacted about a case until after the death has occurred, the process of bringing the decedent to life in our own mind can be a lengthy one, requiring extensive communication and probing of the client and other family members and friends.

In trying the wrongful death case where there is a surviving spouse, we must translate what we now know about the decedent and the marital relationship and focus in on the essence of the marriage. How did the couple function and interact on a day-to-day basis as a couple? What support and services did the deceased spouse provide? What were their hopes and dreams? What made them unique as a couple? The answers to these questions may vary dramatically depending upon the age and stage of life of the married couple. The death of a spouse may thrust a young adult into the role of a single parent, raising small children alone, while a new retiree may be stripped of her dreams of enjoying her hard-earned golden years with her husband. Thus the stage of life often forms the predicate for the services contributed by the spouse to the relationship. The relationship, of course, has its own intrinsic value. Without first establishing the value the spouse brought to the marriage, we cannot establish the loss to the survivor.

Depending upon the age of the decedent, economic loss may be a substantial component of the surviving spouse’s claim. In such cases, an economist is generally required in order to explain and opine on the extent of lost income and benefits, with a reduction to present value. In cases where the deceased spouse provided financial support, there may also be evidence as to opportunities for advancement and further increases of income. Was the decedent in school and/or hoping to make a career change to another field? Did he have plans for future employment? This testimony may need to come directly from the surviving spouse.

The value of replacement services may also be part of the economic loss calculation, which may include services normally attributable to a non-wage earning spouse, such as home maintenance, meal preparation, cleaning and laundry services. Economic losses often serve as a baseline for the amount of damages in a wrongful death case.

The paradox of the wrongful death case is that the decedent, and his relationship with his spouse, must come alive for the jury in a case which is very much about his death. Unlike the impact of an injury to a particular body part, jurors generally understand death and loss. What they need to understand is the depth of a plaintiff’s unique loss.

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