Placing a monetary value on a wrongful death claim is difficult because no amount of money can replace a human life. And the grieving survivors are understandably reluctant to establish a monetary value for their loss. They therefore turn to their lawyers for advice, and we, their lawyers, have to accept the fact that our help is limited to obtaining money damages. We can treat our clients with care and respect during this difficult time, but we cannot alter the tragedy they face.
I have settled twelve wrongful death cases so far this year (it’s August). Two were claims against the state which by statute must be publicly disclosed – they both settled for well over one million dollars. Nine other cases were against private parties who settled on the condition that the amounts are identified only as an “undisclosed sum.” A twelfth case was settled for less than one million, because of the decedent’s advanced age. In addition, I was co-counsel on three other cases where my co-counsel settled the claim for over one million.
I have been practicing law for 41 years, and for 35 of those years have been handling wrongful death cases. When I first started out one of my biggest challenges was trying to figure out what a particular case was worth. So now that I have some experience, I am putting together this article to help new lawyers who, like me, needed some help in sorting out settlement values for wrongful death claims.
I will begin by describing the statutory factors that must be considered in evaluating a wrongful death case. Then I will offer a statistical analysis of recent wrongful death case results. Then I will describe how we use that analysis at Brett Murphy. Finally, I will discuss the four things that must happen in order to expect a multi-million dollar verdict in a wrongful death claim -- or in any personal injury claim. I hope this brief article will be helpful to younger lawyers trying to evaluate their first wrongful death claim.
Statutory Factors to Consider
In English common law there was no recovery for a death, for the good reason that there was no way to measure the value of that which was lost. This led to the odd result that a negligent party was better off killing someone than merely injuring them. In The Fatal Accident Act of 1846, better known as Lord Campbell’s Act, England first allowed damages for a negligently caused death. The United States followed suit, except that in the United States each state has its own unique statutes governing the damages that can be recovered when a person dies as a result of another’s negligence.
Since I practice primarily in the northwestern United States, I am going to describe the factors that are commonly found in statutes regarding wrongful death claims by referring to the statutory law in the State of Washington. Although each state has a slightly different statutory framework, most states have a similar set of factors. Of course, the statutes of each individual state need to be considered.
Settlement values for wrongful death claims in Washington depend on four statutes. This brief summary will outline the legal requirements to qualify under each statute and explain the measure of damages under each.
Child Death Claims
Of special interest is the unique Washington statute for injury or death of a child (RCW 4.24.010). The decedent must be a minor, or a child on whom either or both parents are dependent for support, or a viable fetus, Moen v. Hanson, 85 Wn.2d 597 (1975). Damages are broadly defined to include “… loss of love and companionship of the child and for injury to or destruction of the parent/child relationship in such amount as, under all the circumstances of the case, may be just.”
This broad language has been interpreted to include parental grief, mental anguish, and suffering. Wilson v. Lund, 80 Wn.2d 91 (1971). Significantly, computation of damages is not limited to a child’s minority. Balmer v. Dilley, 81 Wn.2d 367 (1972). In addition, medical, hospital, medication and related expenses, and loss of services and support are recoverable.
There is no loss as difficult as the loss of a child, and as would be expected, damage awards for loss of a child are, as described in the statistical analysis below, higher than claims for the loss of a single adult, but less than claims for the loss of a spouse and parent who is supporting a family. In one particularly horrifying case, three young boys were burned to death in a pipeline explosion; two were under 18, one was single, 19, and thus no longer considered a minor. Our firm represented the boy who was just past the age of majority, and although we were able to obtain a multi-million dollar settlement on his behalf, it was significantly less than the awards from the same defendants in the same circumstances for the two boys who were under 18 and were thus qualified under the statute for “… such amount as, under all the circumstances of the case, may be just.”
General Wrongful Death Statute
Broadly defined damages are also recoverable in Washington for certain adults under the general wrongful death statute (RCW 4.20.010). The action is brought by the personal representative on behalf of “… the wife, husband, child or children…” of the deceased. Note that these damages are not available for adult decedents who are single and without children.
As discussed in the statistical analysis below, claims on behalf of adult decedents who are single and have no children tend to be lower than awards for adults who leave a spouse and children behind. For decedents with a surviving spouse or child, “… the jury may give such damages as, under all circumstances of the case, may to them be just.” Whether an adult decedent has dependents thus dramatically affects wrongful death verdicts.
Of particular note is that “pain and suffering in anticipation of death” is only recoverable by the beneficiaries listed in the statute, and then only if the decedent experienced a conscious period of pain and suffering before death. Investigation to tie down the period of consciousness through medical and lay testimony is thus one of the keys to a significant verdict. But again, these damages are not available to unmarried adults who die without children.
General Survival Statute
All decedents, even unmarried decedents without dependents, may recover under the General Survival Statute (RCW 4.20.046). The claim is brought by the personal representative for the benefit of the decedent’s estate. Damages include the present value of the decedent’s future net earnings had he lived a normal life expectancy. In calculating the net earnings, the effect of income taxation is not deducted from gross earnings. Hinzman v. Palmenteer, 81 Wn.2d 327 (1972). In short, unmarried decedents recover only their economic loss, so the amount of damages available is dependent upon three factors:
1) Their earning capacity as demonstrated by their earnings history;
2) Their future work life expectancy i.e. how many more years they had before they were likely to retire;
3) The discount rate used by the economist calculating the present value of their loss.
Careful selection of expert witnesses in the field of vocational rehabilitation and economic loss calculation is thus necessary to maximize the recovery.
Special Personal Injury Statute
Care must be taken with the Special Personal Injury Statute (RCW 4.20.060) because of the potential to duplicate damages recoverable elsewhere. However, it is useful in representing survivors who might not qualify for damages under other statutes. The claim is brought on behalf of the spouse or surviving children, and if there is no surviving spouse or issue, the claim may be brought on behalf of certain other family members – “… if there is dependent upon the deceased for support and resident in the United States at the time of the decedent’s death, parents, sisters or brothers…” The recoverable losses include medical, hospital, and funeral expenses and earnings lost prior to death.
In sum, the measure of damages available to survivors in Washington varies significantly from other states and depends significantly on the age, marital status, and parental status of the decedent.
Statistical analysis of recent wrongful death cases
I thought it would be interesting to look at both trial and settlement results for recent cases. The best databank for that information is Northwest Personal Injury Litigation Reports. This database collects verdicts and settlements in Washington and some other northwest states, and reports key facts for each: the attorneys, the experts, the liability theory, the damages theory, a brief case description, and the ultimate result. I highly recommend subscription to this service for any lawyer practicing personal injury law in the Pacific Northwest.
We searched this database for all results which included the term “wrongful death”, and pulled all results where that term was mentioned. We then eliminated duplicates, cases where the term was used but the case was not truly a wrongful death claim, and we also eliminated defense verdicts on the theory that a defense verdict is a judgment about liability, not about damages. We looked at each result, determined the year of the result, and then adjusted each result for inflation. For each category of cases, we determined:
The highest verdict;
The highest settlement;
The highest result (settlement or verdict);
The 75th percentile result (the result where 25% of the results are higher and 75% of the results are lower);
The arithmetic average result;
The median result;
The 25th percentile result (the result where 25% of the results are lower and 75% of the results are higher.).
All verdicts and settlements
Highest verdict: $4,926,366.69
Highest settlement: $14,313,056.83
Highest result: $14,313,056.83
75th percentile result: $2,163,880.67
Arithmetic average result: $1,485,558.76
Median result: $1,279,254.18
25th percentile result: $506,920.76
We did the same calculations for a number of different categories of claimants.
Decedents under 18
Highest verdict: $4,452,014.26
Highest settlement: $1,528,510.50
Highest result: $4,452,014.26
75th percentile result: $1,528,510.50
Arithmetic average result: $1,526,606.36
Median result: $670,393.49
25th percentile result: $345,898.87
Decedents over 18 with no spouse or children
Highest verdict: $1,283,262.00
Highest settlement: $2,266,001.95
Highest result: $2,266,001.95
75th percentile result: $1,283,262.00
Arithmetic average result: $792,604.13
Median result: 378,679.12
25th percentile result: $187,668.85
Decedents over 18 with a Spouse or Children
Highest verdict: $6,158,149.04
Highest settlement: $14,313,056.83
Highest result: $14,313,056.83
75th percentile result: $3,043,706.45
Arithmetic average result: $2,429,915.20
Median result: $1,249,563.81
25th percentile result: $711,511.78
How we use this statistical analysis at Brett Murphy
A normal distribution is a very important statistical data distribution pattern occurring in many natural phenomena, such as height, blood pressure, and, I’m assuming here, verdicts in wrongful death claims. This data, when graphed on a histogram, (data on the horizontal axis, amount of data on the vertical axis), creates a bell-shaped curve known as a normal curve or normal distribution. Normal distributions are symmetrical with a single central peak at the median. The shape of the curve is described as bell-shaped with the graph falling off evenly on either side of the median. 50% of the results lie to the left, and 50% lie to the right. Under what statisticians refer to as the “empirical rule”, approximately 68% of the distribution lies within 1 standard deviation of the mean – from between the 16th percentile and the 84th percentile. 95% of the distribution lies within 2 standard deviations of the mean, from the 2.25 percentile to the 97.5 percentile. 99.7% of the distribution lies within 3 standard deviations of the mean.
At first glance, it would appear that a lawyer should try to obtain an average settlement, or somewhat better. Unfortunately, that approach undervalues claims. Many personal injury claims are handled by lawyers who are young, inexperienced, working outside their field of expertise, or working for a settlement mill where the goal is to maximize the attorney’s recovery per amount of effort rather than the total client recovery. All of these factors tend to result in many cases being settled for far less than they would recover in the hands of an experienced practitioner. The same goes for the cases tried by inexperienced lawyers. Mistakes are made, often just judgment mistakes in trial advocacy not rising to the level of malpractice, but still impacting the trial result. Average is not good enough.
Although the choice is always up to the client based on the client’s tolerance for risk, we generally advise clients not to settle a case within normal limits; that is for less than the 84th percentile.
We attempt to settle cases between one and two standard deviations from normal, i.e. for more than 84% of similar cases, recognizing that obtaining more than 97.5% of the average case is likely to occur only through trial.
The truly remarkable results, the top 2.5%, are rarely achieved in settlement. In several Washington jurisdictions we have obtained the largest verdict ever recovered in that jurisdiction at the time the verdict was recovered. But in each case we had to proceed to trial to achieve that result. No rational insurance company is going to pay in settlement more than has ever been recovered for a similar injury in a similar jurisdiction. Those results must be earned at trial. Frankly, they are often earned at trial when the defendant undervalues the case and refuses to make a reasonable offer, and the plaintiff has no alternative but to take the case to trial and allow the defendant to present their questionable theory to a jury.
Sixteen years ago, the day after I obtained my first multi-million dollar verdict in a wrongful death case, an older, wiser, and universally well regarded trial lawyer took me out to breakfast to celebrate. I told him I was a bit chagrined, because, as I said, “Actually, even though I am proud of my work, in fact the jury gave the large award because the opposing counsel screwed up.” He leaned over the table and whispered, “I know, that’s how I get mine too.”
Most malpractice occurs not at trial, but in the inability of counsel to properly assess the risk of trial. For plaintiffs, the risk is that the opposing party may be correct, and that you may be valuing your case too high. So far, knock on wood, that hasn’t happened to us in trying wrongful death cases.
Four Requirements for a Multi-Million Dollar Result
In addition to wrongful death cases, we settle and try major personal injury claims, some of which result in multi-million dollar awards. In teaching classes to younger lawyers, I’ve come up with a handy, easy way to remember what is required in order to obtain a multi-million dollar verdict. There are four requirements:
The defendant must have done something really stupid;
The defendant must find a lawyer who is stupid enough to deny it;
The plaintiff must have been really hurt;
The defendant must find a lawyer who is stupid enough to deny it.
The defendant must have done something really stupid.
The amount of damages a jury is likely to award is affected by the type of negligence that has occurred. If your client is run over in a crosswalk by the town drunk, the case has a certain value. But if a similar client is run over in the same crosswalk by the local Baptist Minister who is on his way to church, distracted by what he will say in his upcoming sermon, the case is worth less. Juries award damages either to help someone or to hurt someone, and they are much more likely to award significant damages when the defendant has done something really stupid, like driving drunk, molesting a parishioner, or behaving with reckless disregard.
The defendant must find a lawyer who is stupid enough to deny liability.
When the defendant denies liability, he gives the jury the opportunity to make a statement in its verdict, a statement expressed in dollars. A common tactic of insurance defense lawyers who defend drunk drivers is to admit negligence, apologize profusely, and argue only about damages. On the other hand, where the defense attorney is stupid enough to deny that his client has done something really stupid, it gives the jury an opportunity to correct his misperception with a significant verdict.
The plaintiff must have been really hurt.
Verdicts are intended to compensate for losses. You must have a seriously injured plaintiff before you can hope to recover a large verdict. One of the biggest mistakes young lawyers make is to believe that every case that walks in the door is a large case. A lady who is stopped at a stop light, who is rear-ended by an inattentive following driver and suffers a neck injury is not a large case, no matter how good the lawyer. You can’t make a silk purse out of a sow’s ear.
Unfortunately, wrongful death cases by their very nature carry significant damages.
The defendant must find a lawyer who is stupid enough to deny the extent of the injuries.
In major personal injury cases, defense lawyers will sometimes attempt to argue that the injured party was not injured as much as plaintiff argues; fair enough. But in a wrongful death case it is difficult for the insurance defense attorney to argue that a life lost was not valuable. Nonetheless, some try it, finding “dirt”, prior medical conditions, and other marginally relevant information to put before the jury to demean the value of the life lost. This is a sordid and tricky business, which can easily blow up in the face of a defense attorney who is not as skilled as he believes himself to be.
About a dozen years ago I represented a member of a minority group who had been injured in a very conservative area of our state. The insurance company’s final offer was $25,000. They couldn’t believe that a local jury would award significant damages to a racial minority, and relied on that supposition throughout trial. We gave the jury the opportunity to prove they were not prejudiced by entering the largest verdict that had ever been awarded in that jurisdiction.
It obviously takes a number of factors to reach a remarkable result at trial, but these four seem critical.
When I started practicing law 41 years ago and began my first wrongful death case 35 years ago, I wanted to find an older, experienced lawyer who could answer some fundamental questions. What are the statutory factors to consider in evaluating a wrongful death case? What values have been placed on wrongful death cases in the past? How can you evaluate those past wrongful death results through a reliable statistical analysis? And how do you go about putting together a significant claim? What factors help produce a multi-million dollar result? I hope this brief article is helpful to the next generation of young lawyers practicing in the field of wrongful death.