WHEN PARADISE BECOMES HELL: PROOF AND ARGUMENT OF DAMAGES FOR LOSS OF CONSORTIUM
INTRODUCTION AND OVERVIEW
Our working definition of the word or term “consortium” must be as follows: A close and meaningful bonding, togetherness and relationship between persons created and developed by birth, marriage, adoption, or some other form of bonding where the persons have had an existing relationship and have or should have an existing relationship into the future, but where such relationship – whatever its level of existence – does not have to have been perfect to have been strong and meaningful.
Sadly, there is perhaps no area of damages more ignored and minimized and less focused upon than loss of consortium claims. The simple truth is that most lawyers in most personal injury cases treat loss of consortium claims as somewhat of a throw-away item of damages. Little attention is often paid to the focused development of the claim for loss of consortium. Part of our purpose in this paper is to open everyone’s eyes to the splendor of these majestic relationships – even when they are not perfect and even when there are significant problems – to understand that this is a major component of damages in virtually every personal injury case, regardless of the mechanism of injury, regardless of the age of the persons, and regardless of the existence of issues and obstacles which have arisen in the relationship.
II. FLORIDA JURY INSTRUCTION ON LOSS OF SPOUSAL CONSORTIUM
“F.S.J.I. 501.2(d) Spouse’s Loss of Consortium and Services:
“On the claim brought by (spouse), you should award (spouse) an amount of money which the greater weight of the evidence shows will fairly and adequately compensate (spouse) for any loss by reason of [his wife’s] [her husband’s] injury, of [his] [her] services, comfort, society, and attentions in the past [and in the future] caused by the incident in question.”
Because there is no further explanation of what any of this means, it is up to you as the trial advocate to guide the jurors to a clear understanding of the meaning of loss of spousal consortium and the significance of these losses.
III. THE SEVEN DEADLY SINS OF PLAINTIFF LAWYERS WHEN DEALING WITH LOSS OF SPOUSAL CONSORTIUM CLAIMS
Over the years, we have (unfortunately) read many comments about spousal loss of consortium claims which are distressing and disappointing. Some of these comments are from lawyers and include: “The consortium claim is too small to worry about”; “It’s just a throwaway, anyway”; “It’s just not that big a deal, so let’s worry about the main damages and forget about this consortium thing”; “With a rocky marriage like that, how in the world can we push a consortium claim?”; and more. So, it now comes to this – the seven deadly sins committed by plaintiff’s lawyers when dealing with spousal loss of consortium claims:
Sin #1: Failure to develop a solid consortium claim because of prior marital problems.
Sin #2: Failure to name the spouse as a plaintiff and plead the loss of consortium claim from the start of the case.
Sin #3: Failure to develop the spousal loss of consortium claim fearing that a weak loss of consortium claim may diminish the damages in the main claims of the injured spouse.
Sin #4: Failure to bluntly explain to the judge and jury the “visceral” aspects of the spousal consortium claim while simply glossing over or vaguely showing to the jury these losses.
Sin #5: Failure to openly discuss the loss of consortium claim in voir dire.
Sin #6: Failure to teach the jurors on the meaning and extent of loss of consortium and the losses in your particular case in opening statement.
Sin #7: Playing down the loss of consortium claim in summation as opposed to making it a major component of the claim and sometimes even a claim which exceeds (in terms of money damages) the main claim of the injured person (which can and should be done in selected circumstances).
IV. THE MEANING OF SPOUSAL LOSS OF CONSORTIUM AS ARTICULATED BY THE ENLIGHTENED JURIST, JUSTICE MUSMANNO OF THE PENNSYLVANIA SUPREME COURT IN HIS EXTRAORDINARY DISSENTING OPINION IN THE CASE OF NEUBERG v. BOBOWICZ, 401 Pa. 146 (Pa. Sup. Ct. 1960)
DISSENTING OPINION BY MR. JUSTICE MUSMANNO*:
*For purposes of brevity, pertinent excerpts are included below; however, you are strongly encouraged to read the entire majority opinion and dissenting opinion in this case.
…[The majority] thus destroys the right of a wife to recover for the loss of her husband’s companionship, with all that the word companionship signifies. The legal term for material companionship is consortium and it is defined in Black’s Law Dictionary as: “Conjugal fellowship of husband and wife, and the right of each to the company, co-operation, affection, and aid of the other in every conjugal relation.”
It will be noted at once from this definition that while consortium is the very life blood of the marital state, it is something different from and beyond what the husband means to his wife in providing her with physical support and maintenance.
Certainly when a girl gives up her home and family with all the tender associations which have been hers to enjoy since infancy, she expects, and is entitled to have, from her husband, a comfort, companionship, society and love which in their combined virtues will offer her even greater happiness than that which she cherished in the midst of her brothers, sisters, and parents. This claim to her husband’s protection and affectionate mantle becomes hers as much as the wedding ring he places upon her finger. And it is this dedicated devotion which makes her a wife, because if marriage were to mean merely the guarantee of a roof, clothes and food, then, by entering into the bonds of holy matrimony, the wife would really be receiving only a key to an exclusive boarding house.
No one can possibly question in enlightened America that the physical and mental companionship of her husband is a right possessed by every married woman. And it is a legal property, not only a moral blessing. It is that kind of property which entitles her to a severance of the marriage contract if he fails to abide by the vows undertaken at the altar rail. This vested prerogative is so firmly established in the married woman that if somebody steals away her husband’s affection, society, fellowship and comfort, she may bring an action of alienation of affections against the invader of her personal realm.
If we allow, as we do, a wife to recover against the malefactor who robs from her the love and affection due her from her husband, why should she not be allowed to recover against the person who destroys the husband’s capacity to give her the love, affection, and care which constitute the res litigiosae of an alienation of affections suit?…
…The flesh and blood of our American civilization is the family. Without children, not only our civilization but the race itself would perish. Does it not mean something to the law to protect this right; and punish for its destruction? Are we to understand from the decision rendered by this Court today that a wife may bring an action against any person who steals her pocket book, steps on her foot, or injures her dog, but she may not bring an action for the loss of her most valued privilege?…
…Mrs. Neuberg’s husband has suffered catastrophic damage to his heart. The heart is legendarily the citadel of all the tender emotions of which mankind is capable, but it is more than that: it is the pump which supplies energy, strength, and endurance. That strength has been drastically diminished in Israel Neuberg, and his wife will suffer that diminution with him. If they own property in entireties, she is entitled to share in the usufruct of the property. Is she less entitled to share in the benefits accruing from his love and devotion? And is she to be denied what she loses through her husband’s incapacitation?…
…It is generally supposed that love, affection, and devotion are abstract terms which have no palpable *167 reality and therefore cannot be translated into money. In the spiritual world this undoubtedly is true, but where a trespass action for a demonstrated wrongful act is involved, these terms, because of the inexorable law of necessity, must find practical transmutation. The music produced by a symphony orchestra and the fragrances which emanate from a flower garden also fall into the world of the incorporeal, but they are nonetheless very real and can be the subject of material compensation if they cease to exist because of the destruction of the means which bring them into existence.
The mere presence of a mother who cooks and serves a meal adds an enjoyment which is something beyond what one tastes in the food prepared by a hired house-keeper, no matter how conscientious and able that housekeeper may be. The extinguishment of that enjoyment is something which goes into the accounting of the person who extinguished it. The affectionate greeting, the tender solace, the never-failing inspiration are all part of a wife’s companionship and a mother’s care, which disappear with the intervention of death, and there is no reason why the person responsible for the death should not be required to pay for those lost treasures, as much as he is required to pay the wages of the strange housekeeper, the employed seamstress, the new cook, or the hired tutor.
Who is to compute the financial counterpart of these cherished resources which have been laid in ruins? The answer is, the jury. Who is to appraise the hurt and the haunting emptiness of a home when the mother has permanently departed, even though all the curtains are in place and every piece of furniture is still in use? The answer is again, the jury, who, from the testimony, may visualize the decedent and recreate in their minds what she brought to the household which was dependent upon her….
…Under today’s decision the husband, in the event of the death or serious injury of his wife, may not recover anything more than the value of his wife’s services as a housekeeper, a valet, or kitchen scullion. This is a shocking appraisal of what a wife means to a husband and to her family. The law, as now interpreted by the Majority, places the wife in the same category as the most menial servant, so far as pecuniary appreciation of her services is concerned. In future cases, where this question arises, the jury will be instructed that they must not award a penny for what the husband loses in the companionship of the partner of his worries, hopes and dreams.
In the case of Fabrizi v. Griffin, 162 F. Supp. 276, the United States District Court for the Western District of Pennsylvania…said: “The loss of a wife’s services are imponderables which, indeed, command almost inestimable values. . . What is the economic value of these intangible services which in many lives draws the distinction between failure and success? The companionship of a woman and a man joined together in Matrimony . . . is the elixir of life to the youth and to the middle-aged, but it is the necessity of life, as oxygen is to the air, to those who are treading the pathway of life in the later years of one’s existence on this earth.”…
…I respectfully offer the suggestion that the decision of today has made a strange dish of the whole sacred matrimonial relationship. So far as legal recognition is concerned, it has taken all the romance out of married life; it has made of a married couple a simple business partnership. It says in effect that companionship means nothing, love is of no value, society is not recognized, the tender affection between husband and wife has no place in the chronicles of the law. It used to be that when Mary Quadrille married John Cabot, they became Mr. and Mrs. Cabot. Under today’s decision, the wedded couple will become Quadrille & Cabot, Partnership. John keeps what is his, Mary keeps what is hers, and if anything happens to one or the other, the remaining partner may not apply to the law for recompense for what is the most precious possession of all, the jewel of companionship.
Under the Married Women’s Acts, a married woman is entitled to what she earns, she is entitled to obtain and hold property in her own name, she is entitled to retain her original name. But of what value are these rights if she must give up the bond which holds her husband? If neither spouse can legally claim damages for the loss of the companionship of the other spouse, this amazing legal pronouncement comes close to proclaiming that such companionship has no legally recognized existence. And if the law does not recognize that the sentiment of that companionship is a substantive legal right, then Quadrille and Cabot are indeed only business partners occupying the same intimate quarters….
…*174 On July 2, 1959, just a year ago, as I have already quoted, we said: “Between the innocent victim of a wrong and the person who accomplished the wrong, the law imposes on the malfeasor the obligation to make the victim whole. . .” But does the decision of the Court today make the malfeasor pay for the wrong he has imposed on his innocent victim? The object of a Court decision is to benefit the innocent and punish the guilty. It is to ease the burden of those without fault and require the blameworthy to repair the damage they have done. The decision of today punishes the injured person and rewards the injuring one. The tortfeasor blasts the happiness of an innocent married couple, but he must not be required to pay because to do so would be to look through the eyeglass of the present day which presumably wizens what it looks at when Court-made law arbitrarily decides to destroy the flower of its own creation.
Law is supposed to be the distilment of reason. What reason is it that proclaims that a lawsuit will be accepted if it claims compensation for a scratched finger or for a broken leg but will turn a glass eye on the shattered heart of the most respected relationship in civilization, the marriage relationship, that relationship which has, for its very raison d’etre, companionship, love, devotion and care recognized by law?
For the last half century the law has made extraordinary progress in accepting the biblical precept that “Man shall not live by bread alone”, but today’s decision proclaims that when a husband loses his wife’s companionship, or a wife loses her husband’s care, devotion and love, the surviving spouse shall be satisfied with the crust of a few dollars for the material things which have been lost or damaged — and nothing more….
…As a matter of history, the common law recognized woman’s right to the consortium of her husband. The only reason she could not sue for the loss of it was the technical barrier presented by the legal fiction that husband and wife were one. “Nevertheless her right existed.”…
…I would, however, invite attention to the monumental decision of the United States Court of Appeals, District of Columbia, in the case of Hitaffer v. Argonne Co., Inc., 87 U.S. App. D.C. 57, where the Court, after learnedly and exhaustively considering the principal decisions on the subject, said: “The husband owes the same degree of love, affection, felicity, etc., to the wife as she to him. He also owes the material service of support, but above and beyond that he renders other services as his mate’s helper in her duties, as advisor and counselor, etc. Under such circumstances it would be a judicial fiat for us to say that a wife may not have an action for loss of consortium due to negligence.”…
…I have written many dissenting opinions but this one fills me with weariness and almost despair. It seems impossible that in this era of enlightened acknowledgment of the eternal verity that the worth of happiness in this earthly existence is made up of more than the perishable material things, the highest Court of this Commonwealth and the oldest Supreme Court in the United States, should deal a shattering blow which reduces the holy relationship of married life to one of a mere business partnership.
*178 I believe that this wholly insupportable decision of today warrants the attention of the Legislature and that at its next session it should consider passing legislation which will restore to the husband, and grant to the wife, the right to compensation for destruction of the keystone of a happy family life, the very keystone which sustains the arch of sentiment, care, love and devotion which holds the family together.
And until that legislation is enacted, or this Court repudiates, by overruling, this incredible decision of today, I shall dissent from every decision which this Court makes, denying to husband and wife a right which is the very badge of holiness between man and wife in the eyes of the law and the goddess of morality and justice.
V. EACH “ELEMENT” OF A LOSS OF CONSORTIUM CLAIM IS A COMPLETELY DISTINCT, SEPARATE, AND INDEPENDENT LOSS
A loss of consortium claim typically includes the following items: services, comfort, companionship, society, love and affections. In certain instances, there may be additional items. It is exceedingly vital to understand that these elements should never be bundled together and communicated to the jury simply as “the spouse’s claim” or “the consortium claim.” Each element of the consortium claim must be methodically developed and ultimately communicated to the judge and jury. First, we must understand the meaning of each item or element:
A. Services – This refers to the chores or household and family tasks which either can no longer be performed by the injured person or which cannot be performed as well or as long.
B. Comfort – A condition or feeling of pleasurable ease; soothing in time of affliction or distress; consoling one suffering from grief or anxiety; things that contribute to physical ease and wellbeing; improving someone’s mood or restoring someone’s sense of wellbeing.
C. Companionship – The good feeling that comes from being with someone else; friendly camaraderie; chumminess; inseparability; intimacy; nearness; fondness.
D. Society – The totality of a social relationship between two or more persons; two or more persons distinguished from other persons because of their mutual interests, participation in characteristic relationships, common culture between the persons, shared interests; the culture of a distinct self-perpetuating group of two or more persons.
E. Love and Affections – A feeling of strong or constant affection for another person; attraction which may include sexual desire; strong affection for another arising out of kinship or personal ties; affection and tenderness felt by lovers; affection based on admiration and common interests.
VI. STEPS TO LAYING FOUNDATION FOR A LOSS OF CONSORTIUM CLAIM
This section will deal with a general format of “steps” in developing the claim for damages for loss of consortium. These steps are as follows:
Step 1 – Identify legal basis for existence of relationship (i.e., marriage certificate, adoption papers, biological parent, etc.).
Step 2 – Identify factual basis for existence of relationship (i.e., nature of relationship, strength of relationship, duration of relationship, low points and high points in relationship, etc.).
Step 3 – Must prove tortious conduct or liability of defendant.
Step 4 – Must initially prove legal causation (and medical causation) in underlying case against injured person.
Step 5 – Must prove that there has been injury, damage, and loss to injured person.
Step 6 – Must prove that injury/damage to injured person has caused and resulted in physical or mental injury to the injured person which, in turn, have caused or resulted in loss to spouse (or other family member) as to elements of loss of consortium claim including lost services, comfort, companionship, society, love and affections.
VII. DO NOT FEAR PRE-EXISTING PROBLEMS IN THE RELATIONSHIP BUT DO “CONSIDER” THOSE PROBLEMS AS A PART OF THE ASSESSMENT OF THE LOSS OF CONSORTIUM
All too many a lawyer fear problems relating to loss of consortium claims. This fear is often based on the lawyer’s misdiagnosis of the relationship problem and of its meaning and, most certainly, as to its likely affect on the members of an American jury. Over the years, I have had cases where parents and children and spouses were often somewhat estranged from one another, and yet the jury understood the losses and decided upon reasonable and adequate awards. I have also had cases where prior to an incident one spouse had an affair, and yet in another case, a spouse threatened to kill the other spouse and had actually done physical violence on the other spouse prior to the incident in question. Yet in each case, the jury understood the nature of what had happened and why it had happened, and returned verdicts with reasonable and adequate awards. Although it is true that there are some instances where a relationship is so problematic that it is either non-existent, or it is what we might call the opposite of any form of a relationship at all, and perhaps the loss of consortium claim should not be pursued – that is a very rare and unusual occasion or event. In virtually every instance, there is indeed a reason for problems in a relationship and one which can be explained to jurors.
VIII. LIST OF ITEMS TO CONSIDER WHEN PREPARING TO PROVE AND ARGUE LOSS OF CONSORTIUM
1. Legal existence of relationship:
- a. Birth certificates;
- b. Adoption records;
- c. Marriage certificates;
- d. DNA test results;
- e. Court orders regarding relationship.
2. Factual basis of relationship:
- a. Nature of relationship (i.e., spouse);
- b. Length and duration of relationship;
- c. Any gaps in time together;
- d. Activities together in recent months versus over longer periods of time;
- e. Nurturing aspects of relationship;
- f. Teaching/learning aspects of relationship;
- g. Mentoring aspects of relationship;
- h. Benefit to each in being a part of the relationship;
- i. Detriment to each in being a part of the relationship, if any;
- j. Physical ties (i.e., intimacy if spousal loss of consortium claim);
- k. Discipline and counseling (i.e., parental);
- l. Level and strength of communications with one another;
- m. Travel together;
- n. Social activities together;
- o. Educational activities together;
- p. Counseling activities together;
- q. Entertainment activities together;
- r. Activities considered to be “bonding” items;
- s. Joint possession and joint ownership of things and properties;
- t. Joint ventures together;
- u. Recreation and sports together;
- v. Taking risks together and with one another;
- w. Tasks performed for household and for one another;
- x. Helping and comforting one another when sick or ill;
- y. Laughing together and happy times;
- z. Crying together or grieving together in more difficult times;
- aa. Weathering storms together (literally and figuratively speaking);
- bb. Pranks and tricks and fun with one another and others;
- cc. Time spent together on an hourly and daily basis – last 30 days, 60 days, 90 days, 180 days, 1 year, five years, 10 years, and more;
- dd. Explaining what this person “means” to you in your life;
- ee. Void in person’s life when other person is absent or unavailable;
- ff. Fear or anxiety when this person not around or not available;
- gg. Need for this person to be with you and available for certain occasions or events or activities;
- hh. Holiday special occasion event activities;
- ii. Handling of episodes when angered with one another or disappointed in one another;
- jj. Genuinely “listen” to one another;
- kk. Help one another with chores and tasks;
- ll. Written communications between the two;
- mm. Verbal communications between the two which may have been recorded;
- nn. Sharing intimate details about life;
- oo. Funny and perhaps silly codes and secret handshakes and secret passwords between one another;
- pp. Loving you for what you are as opposed to what you could have been or should have been.
While there is perhaps no other area of damages which is more ignored and minimized, when properly prepared and presented to a jury, a loss of consortium claim often can be equal to or greater than other areas of damages.
John Romano: A partner at Romano Law Group, John F. Romano is a civil trial advocate board-certified by the Florida Bar and the National Board of Trial Advocacy, as well as the American Board of Professional Liability Attorneys. John is also a member of the Taos Group, an association of prominent trial attorneys from around the country who work together to better serve the needs of their clients.
John regularly handles and litigates cases in the following areas: auto and truck accident litigation and trials, fall-down and premises liability cases, product liability, business litigation, pharmaceutical drug cases, pharmaceutical medical device cases, insurance litigation and criminal defense.
John has successfully litigated to a verdict nearly every type of civil and criminal case, including those involving failure to diagnose cancer, product defects, drug and vaccine defect litigation, libel and slander, vehicular collisions, personal injury, murder, armed robbery and wrongful denial of health insurance benefits. He lectures across America on trial advocacy and tort and criminal law, has authored three textbooks, and has published more than 100 articles in national publications or papers for national presentation.
John is a graduate of Cardinal Newman High School in West Palm Beach. He accepted a football scholarship from Florida State University and went on to attend law school at South Texas College of Law in Houston, receiving his Juris Doctor degree in 1973. He was admitted to practice law in the state of Florida in 1974. John also proudly served as a Captain and J.A.G. Officer with the United States Marine Corps (primarily with the Second Marine Division out of Camp LeJeune, North Carolina).
For more information, please visitwww.romanolawgroup.com/