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award of no damages for loss of society
was not against the manifest weight of
the evidence.
Passow v. Glaser
, No. 2-09-
1178, 2011 WL 10101872 (March 11,
2011). The court simply indicated that the
presumption was rebutted by a credibility
assessment, which was sufficient because
“in committing the assessment of damages
to the discretion of the jury, the law also
commits to the jury the assessment of the
credibility of the witnesses.”
Passow
at *5.
At the other end of the spectrum, courts
have made significant awards based on less
than compelling evidence. In
McKinnis v.
United States
, the adult children’s contact
with their father was limited to occasional
visits and phone calls. No. 06 cv 4965 (N.D.
Ill. Dec. 10, 2008). They did not even visit
him in the hospital before he died–yet the
court considered this relationship sufficient
to award $150,000 per adult child.
What Constitutes Adequate Rebuttal?
Few cases address the evidence necessary
to rebut the presumption of loss of society.
Illinois case law establishes that estrange-
ment is one, but not the exclusive, method
for rebutting the presumption of loss of
society. If there is a claim of estrangement,
a defendant may elicit affirmative evidence
that the decedent and her children had not
reconciled through the testimony of a third
party, e.g., a relative or a close friend.
In
Watson v. South Shore Nursing &
Rehabilitation Center,
2012 IL App (1
st
)
LEXIS 103730, 965 N.E.2d 1200, the
appellate court held that a zero damage
award for loss of society was against the
manifest weight of the evidence, where
the decedent’s daughters as well as defen-
dant’s employees had testified to the close
relationship the women shared with their
father. The defendant contended that the
daughters’ testimony focused on the rela-
tionship they had had with their father
as children and their grief at his death,
which the defendant contended were not
compensable. The court noted that the
daughters had testified to a continuing
relationship with their father throughout
the time he was in defendant nursing
home and up to the time of his death, and
observed that no evidence was presented
to rebut their testimony. In reversing the
trial court’s award of zero damages, the
court held that a “jury may not arbitrarily
reject the testimony of an unimpeached
witness.” Significantly, the
Watson
court
relied on
People ex rel. Brown v. Baker
,
where the court held that if “the testimony
of a witness is neither contradicted, either
by positive testimony or by circumstances,
nor inherently improbable, and the witness
has not been impeached, that testimony
cannot be disregarded even by a jury.” As
Watson
underscored, a jury that awards
zero damages where there is no testimony
to raise a contrary inference or question the
plaintiff’s credibility has ignored a proven
element of damages.
On the other hand, the court in
Smith
v. Mercy Hosp. & Medical Center
indicated
(like the court in
Passow
), that “implicit in
the right to weigh the presumption is the
right to give it no weight at all.” 203 Ill.
App. 3d at 477. Indeed, the
Passow
deci-
sion also discourages plaintiffs from fully
testifying to their loss of society, as the jury
may give the testimony no weight at all, or
simply disbelieve it, thereby defeating the
plaintiff’s claim.
Practical Trial Strategies to Avoid a Zero
Damage Award
To avoid the devastating result of
Passow,
plaintiffs should not rely on the perceived
advantage of the rebuttable presump-
tion. Rather, they should offer as much
independent proof of loss of society as
possible. For example, if the plaintiffs
testify to multiple telephone calls per
week, then admit the telephone records.
If the plaintiffs attest to family outings or
regular events shared with the decedent,