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McQueen v. Jersani8/26/2005
e causation evidence was insufficient. In particular, the defendant argues that Dr. Stoner refused to opine regarding Milton's life expectancy at the time of his death and Dr. Stoner's concession that Milton may have exceeded his life expectancy resulted in causation evidence so equivocal as to be worthless.
Damages Under Wrongful Death Act for Loss of Consortium - -evidence of life expectancy Section 768.21, Florida Statutes, entitled "Damages," provides in relevant part:
All potential beneficiaries of a recovery for wrongful death, including the decedent's estate, shall be identified in the complaint, and their relationships to the decedent shall be alleged. Damages may be awarded as follows:
(1) Each survivor may recover the value of lost support and services from the date of the decedent's injury to her or his death, with interest, and future loss of support and services from the date of death and reduced to present value. In evaluating loss of support and services, the survivor's relationship to the decedent, the amount of the decedent's probable net income available for distribution to the particular survivor, and the replacement value of the decedent's services to the survivor may be considered. In computing the duration of future losses, the joint life expectancies of the survivor and the decedent and the period of minority, in the case of healthy minor children, may be considered.
(2) The surviving spouse may also recover for loss of the decedent's companionship and protection and for mental pain and suffering from the date of injury. (Emphasis added).
Subsection (1) primarily addresses economic damages and it is in that context that the language exists that "in computing the duration of future losses, the joint life expectancies of the survivor and the decedent . . . may be considered." The subsection uses the word "may" and not "shall," indicating that the statute permits but does not require consideration of joint life expectancies. Subsection (2) in allowing for a surviving spouse's recovery for loss of companionship and protection and for mental pain and suffering does not reference consideration of the life expectancies of the decedent and surviving spouse. This omission suggests that the trier of fact is not required by the terms of the wrongful death act to consider such life expectancies when calculating a surviving spouse's claim. While no Florida case law addresses the evidentiary requirement regarding a decedent's life expectancy under subsection (2), in BellSouth Telecommunications, Inc. v. Meeks, 863 So. 2d 287 (Fla. 2003), the supreme court considered the meaning of subsection 768.21(3) which provides for recovery by a decedent's children "for lost parental companionship, instruction and guidance and for mental pain and suffering from the date of injury." The precise issue in Meeks concerned whether the damages recoverable by a minor child under subsection (3) are limited to the period of minority.
The supreme court answered the question in the negative. In doing so, the court explained that damages under subsection (3) should be calculated based on the joint life expectancies of the minor child and the deceased parent. The court noted that subsection (3), unlike subsection (1), contains no limitation on damages to the period of minority.
In discussing calculation of damages based upon life expectancies, the court explained:
Similarly, in this case [the minor son Kevin's] pain and suffering could be lifelong. Thus, under Gross Builders [Inc. v. Powell, 441 So.2d 1142 (Fla. 2d DCA 1983) ]rationale, Kevin's damages should be calculated based on his life expectancy. However, because it would
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