Non-Economic Damages for the Death of an Elderly Plaintiff

 In Tactics

On November 6, 2014, WSAJ presented a CLE on wrongful death damages which included a presentation by attorney Mark Kosieradzki titled, “Non-Economic Damages for the Death of An Elderly Plaintiff.”

Mr. Kosieradzki noted that non-economic damages for the elderly are challenging for many plaintiff attorneys because they mistakenly focus on the per diem, which is particularly ineffective for elderly plaintiffs who do not have much time left to live.  He explained that the defense will try to frame a wrongful death case involving an elderly plaintiff by claiming that the plaintiff was “old, sick, and going to die soon anyway.”  Mr. Kosieradzki suggested using a four step approach to reframing these cases at trial, which is briefly summarized below:

“Step One” requires empowering the jury.  Mr. Kosieradzki explained that you must tell the jury that they have the power to right a wrong and ensure safe behavior in the future.

“Step Two” requires sequencing the evidence to focus on the wrongful conduct because conduct drives damages.  For example, Mr. Kosieradzki explained that you want the jury in a nursing home neglect case to focus on the fact that the corporate defendant is making a choice to put profit over people.

“Step Three” requires stressing the importance of dignity.  If someone is old, they are entitled to the same treatment as a 12-year-old or a 40-year-old.

“Step Four” requires anchoring numbers.  Mr. Kosieradzki explained that small numbers drive small verdicts.  He suggested dropping small numbers, such as a workers comp lien, for the sake of the jury focusing on the bigger picture.

For more tips on presenting damages in nursing home neglect cases, there is a chapter on “Damages” in WSAJ’s Nursing Home Litigation Deskbook, published in 2013.

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