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McQueen v. Jersani8/26/2005
e that period has elapsed. Id. This comports with pre-1972 wrongful death decisions holding that in assessing wrongful death damages, a jury is not limited to consideration of testimony as to probable life expectancy. See Bould v. Touchette, 349 So. 2d 1181, 1185 (Fla. 1977).
The analysis in Meeks applies equally to this case insofar as the measure of damages is concerned and the duration of the damages is calculated based on the joint life expectancies of the surviving spouse and the deceased spouse. This conclusion is consistent with basic principles governing the recovery of damages. Typically damages cannot be based on mere guesswork or speculation but must have an evidentiary basis. Smith v. Austin Development Co., 538 So. 2d 128 (Fla. 2d DCA 1989). Without some evidence of life expectancies, how can the trier of fact intelligently measure the duration of the surviving spouse's loss?
There has traditionally been some arbitrariness involved in arriving at a fair assessment of damages for loss of consortium for the wrongful death of a spouse. See, e.g., Legare v. U. S., 195 F. Supp. 557, 561 (S. D. Fla. 1961) (award for loss of companionship and consortium of wife during couple's joint life expectancy "is, of necessity, almost arbitrarily arrived at. . . . Who can value the love and companionship, the strength and solace in times of sorrow, the joyous partnership in times of happiness, of a steadfast and devoted wife?"). Indeed, in instructing the jury here, the court noted the absence of an exact standard of measurement. However, the duration of a loss can, in some respects, be reasonably quantified. Even in Legare, and other state court decisions decided under the old wrongful death statute, the courts referenced the standard of joint life expectancy. See, e.g., Stanford Fruit Growers, Inc. v. Frazier, 27 So. 2d 906 (Fla. 1946); Pidcock-Jones Co. v. Watson, 193 So. 305 (Fla. 1940).
Given that some evidence relevant to joint life expectancies is necessary to a damages claim under section 768.21(2), the remaining inquiry concerns whether substantial competent evidence in this regard was presented by the plaintiff.
As to Virginia's life expectancy, the trier of fact could assess life expectancy based solely upon her testimony and physical appearance at trial. See Stanford Fruit Growers, 27 So. 2d at 906. In other words, expert testimony as to the surviving spouse's life expectancy was unnecessary.
The decedent's life expectancy is another matter since the trier of fact is unable to directly assess the decedent's physical condition and mental acuity. The defendant does not argue that Virginia's failure to introduce a mortality table is fatal to her damages claim but rather asserts that Virginia presented no evidence as to her husband's life expectancy other than that he may have exceeded his reasonable life expectancy at the time of his death.
The trier of fact must be given some evidence from which it can intelligently consider the decedent's life expectancy. Clearly this may be in the form of expert testimony from a physician who is familiar with the decedent's medical condition prior to death. In the present case, Virginia's expert, Dr. Stoner, was unable to opine as to the 79-year-old decedent's life expectancy and conceded that the decedent may have exceeded his reasonable life expectancy at the time of his death. The defendant argues that this concession by the plaintiff's own expert is fatal to her damage claim. However, this argument ignores the well-settled principle that the trier of fact may accept or reject all or any portion of an expert witness' testimony. See Chesnoff v. State, 840 So. 2d 423 (Fla. 5th DCA 2003). Further, this
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