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Democrats in the General Assembly this week lined up to push a measure that would allow state courts to award punitive damages in wrongful death lawsuits a departure from the status quo for more than a century in Illinois.

Illinois is one of 16 states that does not allow for the recovery of punitive damages in wrongful death cases, though the state does allow for plaintiffs in personal injury cases to seek punitive damages.

It's only when the plaintiff has died from his or her injuries that punitive damages are precluded, Senate President Don Harmon, D-Oak Park, said Thursday during a brief debate on House Bill 219. The awarding of punitive damages should not turn on whether the injuries were severe enough to kill the plaintiff.

HB 219 would take the standards for seeking punitive damages in personal injury cases and apply them to Illinois Wrongful Death Act. The bill is an initiative of the Illinois Trial Lawyers Association, which has historically been an ally to Democrats.

The states business community mounted a swift but ultimately ineffective opposition campaign against the bill after it popped up earlier this week, citing increased liability costs. The bill passed with only Democratic votes in both the Senate and House this week and will soon be sent to Gov. JB Pritzker for his approval.

ITLA President Pat Salvi Jr., a managing partner at prominent Chicago-based personal injury law firm Salvi, Schostok & Pritchard, told a Senate panel this week that allowing punitive damages only when a victim survives is a defect in the law.

We believe it is time to fix what the Illinois Supreme Court noted is the often-repeated adage that it is cheaper to kill your victim than to leave him maimed, Salvi said, quoting from a 1983 opinion from the states high court that affirmed punitive damages are not allowed in wrongful death cases. That cannot be.

Punitive damages exceedingly rare

While compensatory damages are meant to compensate a victim or victims family for anything from lost wages and hospital bills to pain and suffering, punitive damages are meant to punish a defendant and deter the type of reckless action that led to injury or death.

Punitive damages are rarely asked for and even more rarely granted. According to ITLA, in the last decade, Illinois juries have awarded punitive damages of more than $10,000 in only 18 personal injury cases.

The most recent nationwide study on the matter from the U.S. Department of Justice in 2005 found that, among successful cases, punitive damages were awarded in just 3 percent of the most common types of personal injury cases.

Punitive damages for product or premises liability and car crashes were awarded in 1 percent or fewer cases according to the DOJs report. The study was based on a survey of courts in the nations 75 most populous counties, including Illinois Cook and DuPage counties.

At the time of the DOJ report 18 years ago, the median punitive damage award in all successful tort cases was $55,000; adjusted for inflation, that figure would be just under $85,000 now.

Still, business groups said increasing opportunities for punitive damages could deter companies from moving to or expanding in Illinois due to increased liability. The insurance lobby also registered its opposition to the bill, and Republicans repeated the groups concerns during House and Senate debates this week.

We could end up shutting down a business because of one or two bad actors, Rep. Dan Ugaste, R-Geneva, said during debate in the House. And Im not defending the bad actors at all. Im just saying theres other people to consider here.

Ugaste went on to imagine the ripple effects of shuttered businesses on workers and their families. But he also lamented that HB 219 didnt contain any caps on punitive damages.

The Supreme Court in Illinois has ruled that theyre unconstitutional, Rep. Jay Hoffman, D-Swansea, told Ugaste, saying the legislatures hands were tied as to including hard caps in the bill.

But Hoffman did note that the states high court has ruled that any punitive damages exceeding 10 times the amount of compensatory damages would be considered a violation of due process, in essence putting a soft limit on punitive damages.

According to ITLA, caps are in place in only nine of the 34 states that already allow punitive damages in wrongful death cases.

Grisly mathematics

Even if placing caps on punitive damages was constitutionally feasible, Harmon maintained that writing caps into state law would set up a perverse incentive system for companies to do the grisly mathematics of a cost-benefit analysis. He cited the legal debacle over the Ford Pinto in the 1970s, when the company delayed recalling 1.5 million cars despite knowing about a dangerous design defect that caused gas tanks to explode even in low-speed crashes.

The companys apparent cost-benefit analysis found it would be less expensive for the company to settle cases with victims than to recall the cars and prevent the deadly explosions they were causing.

Imagine someone sitting in a corporate boardroom saying we can kill 127 drivers before it's more expensive to recall the car than it is to simply pay the capped punitive damages, Harmon said.

In September, a Cook County jury granted $325 million in punitive damages on top of $38 million in compensatory damages to Sue Kamuda, who developed breast cancer in 2007 after living near the Willowbrook Sterigenics medical supply sterilization plant for years. It was the states largest punitive damage award in recent history.

The jury found the Oak Brook-based company did not invest in emissions-curbing technology, which would have reduced the amount of carcinogenic gas emitted from its Willowbrook plant, despite knowing the cancer risk ethylene oxide posed to neighbors.

Kamuda is one of hundreds of nearby residents whove filed similar claims since 2018, when the U.S. Environmental Protection Agency published research that found people who lived in the area around the facility faced some of the highest cancer risks in the U.S. The state of Illinois ordered the plant to close temporarily in early 2019, and Sterigenics later voluntarily shuttered the plant permanently.

Salvi represented Kamuda in the case, and in an interview with Capitol News Illinois this week, he said despite the eye-popping figure his client was awarded in punitive damages, her case was one of only five or six times in his 16-year legal career that hes filed for punitive damages.

And if punitive damages had been an option in wrongful death cases over that same time period, Salvi said hed likely only have sought punitive damages in less than five additional cases, nearly all in suits involving deaths due to drunk drivers.

Capitol News Illinois is a nonprofit, nonpartisan news service covering state government. It is distributed to hundreds of print and broadcast outlets statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation, along with major contributions from the Illinois Broadcasters Foundation and Southern Illinois Editorial Association.

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Democrats move to allow punitive damage awards in wrongful death ... - WGLT