Van Auken v. Saud
In the case of Van Auken v. Saud, No. 20-CV-4717 (C.P. Lacka. Co. April 29, 2022), Judge Terrence R. Nealon, authored an opinion that explains the difference between Pennsylvania Wrongful Death Act (42 Pa.C.S. § 8301) and Survival Act (42 Pa.C.S. § 8302) claims.
The Van Aukens filed Wrongful Death and Survival Act claims against a hospital and emergency medicine physician alleging that their negligent conduct in failing to timely diagnose an aortic dissection caused their minor daughter’s (“Anna”) death. In their capacity as “wrongful death” beneficiaries (limited to the decedent’s spouse, parents and children), the Van Aukens seek to recover compensation for the pecuniary value of the services that their daughter would have provided to them. In the their capacity as administrators of their daughter’s estate, the Van Aukens seek to recover compensation for their daughter’s loss of her future earnings, less her personal maintenance expenses, during her estimated work-life expectancy.
The Van Aukens submitted evidence to show that Anna had aspirations to be a teacher, therefore, their expert economist calculated Anna’s annual earning capacity. The economist estimated the value of the benefits she could expect to receive as a teacher to be 37% of her earnings; and, calculated her “personal maintenance expenses” to be approximately 42%, ultimately concluding the “present value” of her earning capacity, less personal maintenance to be approximately $2.5 million. The defendants’ economic disputed these figures, and concluded that Anna’s future earning capacity was only approximately $1 million. In this case, the defense economist, inter alia, determined that the Van Aukens were not entitled to recover health insurance from the fringe benefit calculation because they would not have benefitted from Anna’s health insurance. Moreover, the defendants’ economist’s calculations concerning Anna’s personal maintenance was significantly higher, as they included expense for transportation and personal care products and services.
Damage recoverable under the Wrongful Death Act are designed to compensate the wrongful death beneficiaries for the loss they sustained caused by the decedent’s death. Gillette v. Wurst, 594 Pa. 544, 937 A.2d 430 (2007). Damage include reasonable health care, funeral, burial and estate administration expenses, Cardinal v. Kindred Healthcare, Inc., 155 A.3d 46 (Pa. Super. 2017), and the value of the services, including society, comfort and companionship, that the decedent would have provided to her wrongful death beneficiaries if she had lived. Rettger v. UPMC Shadyside, 991 A.2d 915 (Pa. Super. 2010). The plaintiff, i.e., the wrongful death beneficiaries, bear the burden of proving the loss of specific services that the decedent would have furnished to the wrongful death beneficiaries if he/she had survived. McMichael v. McMichael, 241 A.3d 582 (Pa. 2020)
Damages recoverable under the Survival Act seek to compensate the decedent’s estate for losses suffered by the decedent. Kiser v. Schulte, 538 Pa. 219, 648 A.2d 1 (1994), including the decedent’s pain and suffering and the loss of gross earning power from the time of injury to death, and the loss of earning power, less personal maintenance expenses, for the decedent’s estimated work-life expectancy. McMichael, supra.. The estimate of lost future earning power includes value of the fringe benefits. Pa. SSJI (Civ.) § 14.170 (5th ed.). The plaintiff does not have the burden to demonstrate their expectation of or entitlement to the decedent’s future earnings, less personal maintenance expenses, had he/she lived. Stated otherwise, although the absence of any evidence of a wrongful death beneficiary’s expectation of receiving certain services from the decedent may negate the wrongful death beneficiary’s ability to claim those wrongful death damages, the estate’s recovery of the decedent’s projected future earnings, less personal maintenance expenses, is not contingent upon proof that some member of the estate would have received those earnings/benefits had the decedent not died. Therefore, the Court ordered the defendants to have their economist revise his projections to conform with Pennsylvania law.
The seminal case in Pennsylvania concerning the calculation for estimates of personal maintenance is McClinton v. White, 497 Pa. 610, 444 A.2d 85 (1982). In McClinton, the Court defined “personal maintenance” as the amount of money that the decedent “would have spent on [her]self individually…to provide [her]self with the necessities of life…which are essential to the individual’s personal and physical subsistence…, based upon [her] station in life, for food, clothing, shelter, medical attention, and some recreation. Id. In Rettger, supra, the Court concluded that it was improper to broaden the list of personal maintenance items to include “transportation” and “personal care products and services.” Therefore, the Court ordered the defendants to have their economist revise his projections to conform with Pennsylvania law.
Finally, the court noted that in medical malpractice cases, future lost earnings claims must be reduced to present value, 40 P.S. § 1303.510; however, in all other personal injury cases, the “total offset method,” which presumes future inflation will be equal to future interest rates, is utilized. Kaczkowski v. Bolubasz, 491 Pa. 561, 421 A.2d 1027 (1980).