Kelly on Malpractice

Can you successfully move in limine to exclude any line of questioning that refers to dating or the possibility of remarriage of your client, the widow or widower? This is an issue of first impression for a Tennessee court. The rule followed by a majority of jurisdictions is that evidence of widow(er)’s prospects for remarriage is irrelevant to the pecuniary value of the decedent. See Bunda v. Hardwick, 138 N.W.2d 305 (Mich.1965); Seaboard Coast Line R.R. Co. v. Clark, 491 So.2d 1196, 1198 (Fla.App.1986); Ciacco v. Housman, 412 N.Y.S. 2d 557 558 (1979); see generally Admissibility of Evidence of, or Propriety of Comment as to, Plaintiff Spouse’s Remarriage, or Possibility Thereof, in Action for Damages for Death of Other Spouse, 88 A.L.R.3d 926.

The evidence cannot be used under the rubric of mitigation. Wood v. Detroit Edison Co., 294 N.W.2d 571, 572-73 (Mich.1980). The foundation for the majority rule rests predominantly on two bases: (1) it invites unfair speculation. To allow evidence of a subsequent marriage to influence the amount of damages awarded for the loss of society and companionship of a prior marriage is highly speculative. Comparing one relationship to another in an attempt to determine damages invites qualitative inquiry inappropriate to the probing scrutiny of the trial court, and (2) it violates the collateral source rule. Evidence of the effects of a subsequent marriage should have no bearing on the amount due a plaintiff following a wrongful death. Compensation received from another source should not affect the responsibility owed to the injured party by the tortfeasor.

Tennessee applies the collateral source rule in wrongful death cases. Fye v. Kennedy, 991 S.W.2d 754, 764(Tenn.App.1998); Dunn v. Patterson, 1999 WL 398083 at *10 (Tenn.App.). ). It also goes without saying that Tennessee law excludes speculative evidence relating to damages. Pinson & Associates Ins. Agency, Inc. v. Kreal, 800 S.W.2d 486, 488 (Tenn.App.1990); Peters v. Michael Const. Co., Inc., 688 S.W.2d 81, 84 (Tenn.Ct.App.1985).

The issue of remarriage arose in Johns v. Baltimore & Ohio R.R. Co., 143 F.Supp.15(W.D.Penn.1956). This was a wrongful death case in which a widow sought compensatory damages after her husband was struck by a train. Id at 16-17. During the course of the trial, defense counsel wanted to prove that the widow, who was 28 years of age, was engaged to remarry. The decedent’s love, according to the defendant, was worth less to the widow if she remarried. The court held that inquiry into the widow’s future love life embarks upon an endless sea of sheer conjecture. After all, what is more incapable of prediction than the lifespan of love between two people? The court implicitly found that pecuniary value never fluctuates after death.

Occasionally, by reason of inheritance, insurance, or individual resilience, a widow(er) is much better off financially after a spouse’s death. Time usually heals wounds left by the untimely departure of a loved one. Yet, the pecuniary value of a loved one never fluctuates after death. The worth of love, guidance, and services from a departed spouse is permanently etched into the tombstone. If every person is truly unique in all the world, then so is the love that person gives to his/her family.

Remember, the value of lost consortium focuses on the services of the deceased, not the future conduct of the widow(er). It bears repeating that consortium-type damages did not create a new cause of action for the widow(er). The Supreme Court merely refined the term “pecuniary value” as the value of the deceased. Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593 (Tenn.1999). The possibility of remarriage is irrelevant to the value of a deceased spouse. Therefore, you should move in limine to keep this evidence out.

The spousal and parental consortium element of pecuniary value is a new addition to Tennessee law. A “Day in the Life” video has been permitted in personal injury cases. See Burks v. Harris, 1992 WL 322375 (Tenn.App.). However, the use of a videotape to prove the lost value of consortium is a matter of first impression in Tennessee. Other states grant significant latitude to the plaintiff in the use of this evidence. In Jones v. Livingston, 416 S.E.2d 142, 146 (Ga.Ct.App.1992), defendants objected to most of the photographs depicting the plaintiff’s relationship with his family. Georgia is a pecuniary value state. There was evidence from which the jury could find that “family” was an important aspect of the plaintiff’s life. The pictures were helpful to the jury in determining the value of the plaintiff’s life from the standpoint of the plaintiff. Even a videotape that contained a hymn sung by the plaintiff was admissible, because it depicted another intangible aspect of his life. The introduction of a recent videotape of the plaintiff was no more prejudicial than a recent photograph. Id.

Illinois is another pecuniary value state. In Drews v. Gobel Freight Lines, Inc., 557 N.E.2d 303, 310 (Ill.Ct.App.1993), defendant objected to the admission of nine photographs showing decedent, before his accident, engaged in various activities and two videotapes with narration showing him teaching his older son to swim and play golf. The court held that the evidence was admissible to depict the love and companionship of the decedent towards his family, particularly when such evidence has long been admissible to show that a plaintiff has been faking injury in personal injury cases. Id.

Texas is also a pecuniary value state. In Pittsburgh Corning Corp. v. Walters, 1 S.W.3d 759, 772 (Tex.Ct.App.1999), the defendant argued error in admission of an edited videotape depicting Walters in the hospital four days prior to his death, as evidence of Walters’ then-existing physical and mental condition. The defendant also asserted that the videotape constituted hearsay evidence. The trial court admitted the testimony under rule 803(3), which provides an exception for “the declarant’s then existing state of mind, emotion, sensation, or physical condition.” Statements admitted under the rule are usually spontaneous remarks about pain or some other sensation, made by the declarant while the sensation is being experienced.” Id. Finally, the defendant argued that presentation of the videotape was far more prejudicial than probative. The court acknowledged that presentation of the videotape may have the ancillary effect of arousing the sympathy of the jury for the plaintiff’s plight. Nevertheless, the plaintiff’s lifestyle was a necessary part of his wife’s case. The videotape used at trial was an effective means of presenting that lifestyle “in its unexpurgated form.” See also Haselden v. Davis, 534 S.E.2d 235 (S.C.Ct.App.2000),

A videotaped montage of pictures is tangible, probative, and valuable evidence of your client’s lifestyle. The jury should see a videotape in order to accurately assess the pecuniary value of your client’s life.