Pre-Death Pain and Suffering awardable in California - Adamson Ahdoot LLP

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Pre-Death Pain and Suffering awardable in California

February 18, 2022 Robert Jalon California, Client Resources, Legal, Legal Process

Bill ensures that families will be able to collect “pain and suffering” damages after their loved ones have died

Touted as a remarkable victory for civil justice by lawmakers, Governor Gavin Newsom signed Senate Bill 447 into law on January 1, 2022, allowing California to join the majority of states in permitting plaintiffs to seek pre-death pain and suffering damages. Formerly one of only five states that prohibited pain and suffering damages from being awarded once a plaintiff dies, California passed their bill on survival damages in 1961, under intense pressure from insurance companies that were trying to limit pay-outs as pain and suffering damages are typically the largest sum of money at stake in civil lawsuits.

The former law allowed for defendants to use every available tactic to delay trials, in the hopes the plaintiff died before it and they could avoid paying any damages or restitution for the suffering they caused. This common tactic of dragging out the trial in hopes of a plaintiff’s death, usually let the company off the hook and saved millions.

This exact scenario happened to Alfonso Rocciola‘s family. The 82-year-old was diagnosed with mesothelioma, a cancer linked to asbestos exposure, after decades of leading construction projects across the Bay Area. The Mayo Clinic states the main risk factor for mesothelioma is exposure to asbestos, used for decades in construction materials like insulation, sheet rock, and paint. Rocciola sued the companies that made the asbestos products he worked with throughout his career. He died on October 19, 2020, before ever getting his day in court and denying his family from compensation from his suffering.

“A wrongdoer should not get a financial benefit if their victim dies before they have to compensate them,” Laurel Halbany, a member of advocacy group Consumer Attorneys of California, said. “The people that we represent are people who have been grievously injured.”   

SB 447 seeks to rectify that decades-long problem; plaintiffs dying before making their trial date and having their pain and suffering damages claims die with them. Introduced by State Senator John Laird (D–Santa Cruz) in Feb. 2021 and sponsored by Consumer Attorneys of California and the Consumer Federation of California, the bill aims to restore the right of a victim or their loved ones, to pursue human suffering damages even if they pass away before their trial.

Under current California law, compensatory damages for a wrongful death claim can include: lost wages, medical bills, property loss, emotional distress, loss of consortium, as well as funeral and burial costs. As non-economic damages, pain and suffering, were not previously awarded. 

Just before the bill’s passage, Laird claimed SB 477 was necessary due to the huge backlog of cases delaying the courts and preventing trials, an unlikely advantage for defendants. “When it comes to giving families a chance to recover non-economic damages, California is one of only five states in the entire nation that rewards defendants for prolonging court procedures–leaving victims unable to obtain justice,” Laird said. “SB 447 will end a decades-old injustice in California by finally extending a victim’s right, and the right of their loved ones, to pursue accountability for human suffering–even if they die prior to case resolution.”

Senate Bill 447 was set up as a four-year pilot program to see what impact pre-death pain and suffering damages will have on the civil justice system and is would expire on Jan. 1, 2026 unless lawmakers vote to extend it.

If you have questions about Senate Bill 477, or yourself or a loved one have suffered at the hands of someone else and would like to know how to proceed, contact the tenacious personal injury attorneys at Adamson Ahdoot LLP.

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