Legal News

Posner on Loss of Consortium: Valuing Companionship, Affection

By Dan Slater

Loss of consortium — that category of damages that’s guaranteed to elicit nervous laughter from almost any group of wide-eyed One L’s — is notoriously difficult to value. How to put a price tag on the affection of a parent? The society of a child? The conjugal rights of a spouse?

In a Seventh Circuit opinion issued Tuesday in a med-mal case, Judge Richard Posner, famous for, among other things, his eagerness to put a value on almost anything, lays out a legal formula for lower courts to use in determining just how much a loved one’s companionship is worth. (HT: How Appealing)

Here’s what happened in the case: Ronald Arpin, 54, “diabetic and overweight,” fell while working at his job as a welder and hurt his hip. When Arpin went to get it checked out, the doctors misdiagnosed an infection of his psoas — a muscle in the hip that the Law Blog’s yoga teacher always belabors — as simple muscle strain. Two weeks later Arpin died.

After a bench trial, the judge awarded the Arpin family damages in excess of $8 million, consisting of some $500,000 for medical care and lost wages, $750,000 for pain and suffering, and $7 million for loss of consortium by Arpin’s wife and four adult children. In explaining the loss of consortium award, the judge said simply that it’s “difficult to put a value on something that is priceless. Mrs. Arpin is far more dependent on her husband than are her children. Her children have suffered the loss of a father that is great and the devastation to this family is immeasurable.”

On appeal, Posner criticized the trial court judge for failing to “indicate the reasoning process that connects the evidence to the conclusion,” and offered this solution to the loss of consortium problem:

Take a single-digits multiple of the compensatory damages — say, 1:5 — and then adjust upward or downward on the basis of the decedent’s number of children, whether the children were minors or adults, and the closeness of the relationship between the decedent and his spouse or children. In the Arpins’ case, concludes Posner, the first and third factors would favor an upward adjustment, and the second a downward adjustment because all of Arpin’s children were adults when they died.

LB’ers: Based on our LB fuzzy math, under Posner’s formula, $7 million would still be in the realm of reasonableness. What do you think about his solution to the loss of consortium conundrum? Any thoughts more generally on loss of consortium as something that requires compensation?

Full post as published by Law Blog - WSJ.com on April 09, 2008 (boomark / email).