Pre-Death Pain and Suffering Damages Come to California in 2022

Posted on December 1, 2021

California has long denied a plaintiff the right to seek pain and suffering damages if the plaintiff dies before judgment.  This rule has led to unjust and unfair results.  A plaintiff may have survived a terrible accident with catastrophic injuries, requiring multiple surgeries and extraordinary pain and suffering.  But if the plaintiff dies before trial, the plaintiff is entitled to recover nothing in the form of pain and suffering.  This rule applies regardless of whether the death was caused by the injury.  Corporate defendants and insurance companies had an economic incentive to wish for the plaintiff to die, thereby reducing their liability.  And if the plaintiff is known to be on death’s door, corporate defendants and insurance companies had an economic incentive to delay trial as long as possible in the hopes the plaintiff would die.  Furthermore, the lack of pre-death pain and suffering goes counter to a fundamental goal of the tort system – deterrence of others from committing harmful acts.  Under California’s existing law, wrongful-death plaintiffs had less forms of damages available to them when the worst kind of harm occurred.  Thus, a burn victim who dies may be awarded less than a burn victim who survives, and the lower award for a more severe injury (death) runs counter to the fundamental deterrence goal of the tort system.  These perverse incentives felt intolerable and unjust to plaintiffs and society alike.

California had at least one way to counter the efforts of corporate defendants and insurers to delay trial of claims brought by a dying plaintiff as long as possible.  Section 36(d) of the Code of Civil Procedure gave the court discretion to give trial preference to a plaintiff who “by clear and convincing medical documentation . . . suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months.”  The trial court had to find that the “interests of justice will be served by granting the preference.”  But this trial preference provision not only set a high standard of proof – the “clear and convincing” evidence standard, which is just short of the criminal standard beyond-a-reasonable-doubt – but also gave the trial court virtually limitless discretion in deciding whether or not to grant the motion.  Thus, justice for a dying plaintiff was not only hard to obtain but also subject to the caprice of the trial judge.  And even if the motion is granted, the trial would not be set immediately.  In fact, the trial could be set four months later, which is near the 6-month expected date of death for the plaintiff.

But starting in 2022, California will join the majority of States in permitting plaintiffs to seek pre-death pain and suffering damages.  Long considered a liberal bastion, California will become more like Utah, Alabama, and Mississippi in permitting these damages.  Senate Bill 447 (SB 477) will allow the decedent’s successor in interest to recover “damages for pain, suffering or disfigurement” for a plaintiff who died after the incident.  In order to qualify for pre-death pain and suffering, the decedent’s successor must have been granted trial preference before January 1, 2022 or must have filed the action on or after January 1, 2022 and before January 1, 2026.

The objective of SB 477 is to set up a four-year pilot program to see what impact pre-death pain and suffering damages would have on the civil justice system.  Yet, we already know the impact, as the majority of States in our country allow such recovery for decades and the sky has not fallen.

SB 477 is a huge victory for civil justice in California.  The bill aligns California with the majority of States in compensating plaintiffs for the pain and suffering they actually felt, regardless of whether they died.  It eliminates the incentive in place for corporate defendants and insurers to hope for the plaintiff’s death and thereby automatically reduce their liability.  And the bill achieves a central goal of the tort system – deterrence of the worst kinds of accidents.



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