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Redfield v. Beverly Health & Rehabilitation Services1/30/2001
death cases:
In every action brought under section 537.080, the trier of the facts may give to the party or parties entitled thereto such damages as the trier of the facts may deem fair and just for the death and loss thus occasioned, having regard to the pecuniary losses suffered by reason of the death, funeral expenses, and the reasonable value of the services, consortium, companionship, comfort, instruction, guidance, counsel, training, and support of which those on whose behalf suit may be brought have been deprived by reason of such death and without limiting such damages to those which would be sustained prior to attaining the age of majority by the deceased or by the person suffering any such loss. In addition, the trier of the facts may award such damages as the deceased may have suffered between the time of injury and the time of death and for the recovery of which the deceased might have maintained an action had death not ensued. The mitigating or aggravating circumstances attending the death may be considered by the trier of the facts, but damages for grief and bereavement by reason of the death shall not be recoverable.
The jury has extraordinarily wide discretion in determining the amount of recovery in wrongful death cases. Letz. V. Turbomeca Engine Corp., 975 S.W.2d 155, 174 (Mo. App. W.D. 1997).
Aequitron compares the $2,000,000 award for Appellant's loss of companionship and Jones's pain and suffering to compensatory damage awards in other wrongful death cases. Aequitron maintains that " he damages awarded in this case far exceed the damages affirmed in every published appellate opinion in Missouri, including those cases in which, unlike here, there was evidence of substantial economic losses." Although awards given and approved in comparable cases is a factor to be looked at in considering remittitur, see Barnett v. La Societe Anonyme Turbomeca France, 963 S.W.2d 639, 657 (Mo. App. E.D. 1997), we find such comparison is not conclusive as to whether or not the award is "so grossly excessive that it shocks the conscience and convinces this court that both the trial judge and the jury have abused their discretion." Botanicals on the Park, Inc., 7 S.W.3d at 470.
Aequitron also argues that $2,000,000 in compensatory damages is excessive because Jones's life expectancy was only ten years and he did not contribute financially to Appellant. Again, this argument does not take into account Appellant's loss of companionship of her son, nor the damages Jones may have suffered between the time the ventilator failed and his time of death, nor any of the other enumerated factors in the wrongful death statute. Based on the facts before us, we do not find the compensatory damages award to be so grossly excessive that it shocks the conscience. Point four is denied.
In its fifth point, Aequitron argues the trial court erred in not amending the judgment because the trial court should have reduced the entire $2,000,000 judgment to $917,000 in that the judgment should reflect a reduction equal to the equitable share of Radford's settlement ($200,000) and a reduction of an additional amount ($883,000) commensurate with Beverly's liability in excess of the health care provider's cap in Section 538.215; if a remittitur is ordered, the judgment should be amended consistent with these principles. In addition, Aequitron asserts the Court should hold that Aequitron has a right of contribution against Beverly for the amount of the judgment it must pay in excess of its proportionate share ($400,000 of the current $2,000,000 judgment or, alternatively, its proportionate share of the remitted judgment) because the statutes in Chapter 538 do not alter Aequitron's right to
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