Proving Non-Economic Damages in a Wrongful Death Case

Proving Non-Economic Damages in a Wrongful Death Case

Unfortunately, West Virginia law does not permit an attorney to calculate or otherwise place a specific dollar value on general, non-economic damages in a wrongful death action. But this does not mean that an experienced attorney cannot help a client prove substantial non-economic damages for the loss of a loved one. West Virginia’s wrongful death statute permits for the recovery of damages for “[s]orrow, mental anguish, and solace which include society, companionship, comfort, guidance, kindly offices and advice of the decedent.” W.Va.Code § 55-7-6(c)(1). But how does one prove such damages? 

West Virginia trial judges have great discretion as to the type of evidence that may be used to prove such damages. West Virginia law recognizes that a family member’s relationship or lack thereof is relevant to proving such damages. Voelker v. Frederick Business Properties Co., 195 W.Va. 246, 251, 465 S.E.2d 246, 251 (1995). Generally, a relative who was estranged from the deceased family member cannot expect to receive significant damages, if any, for the loss of a relative. The best way an experienced attorney can help family members prove their non-economic damages is by presenting evidence of how close of a relationship they had with their departed loved one. The closer the relationship the more a jury can understand the degree of grief, sorrow and loss that has been suffered by the family members.  

Evidence showing the strength and closeness of the relationship, how often the family members had been together with the lost loved one, how harmonious/happy the relationship had been, whether they shared common interest in hobbies and other social activities and events, and how often the decedent had participated in their activities or offered aid, comfort and advice to them are all important pieces to proving such non-economic damages to a jury as well as to opposing parties or their insurance companies. Having family members testify (although emotionally difficult for them) about the closeness of their relationships with their lost loved one and the amount of their sorrow and grief is the best way for a jury to understand the degree of their loss.  Such testimony also can be strongly supported by videos and photographs of the family members being together with their deceased loved ones, whether during a holiday, birthday, family reunion, vacation, sporting event or just a normal day. Explaining the importance of such evidence to family members and assisting them in presenting it in a lawsuit is a very important way an experienced attorney can help family members recover such non-economic damages for the loss of a loved one whether by way of obtaining a settlement or proving such damages to a judge and jury at trial.

 

How does an experienced wrongful death attorney help clients prove non-economic damages in a wrongful death case? Rick Monahan explains.