Johnson v. Fletcher Allen Health Care, No. S1508-08 CnC (Crawford, J., Jan. 31, 2012)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
                                                       STATE OF VERMONT

SUPERIOR COURT                                                                  CIVIL DIVISION
CHITTENDEN UNIT                                                                 DOCKET NO.: S 1508-08 CnC


BRYAN JOHNSON as Administrator

v.

FLETCHER ALLEN HEALTH CARE

                                DECISION ON MOTION IN LIMINE REGARDING
                                       EVIDENCE OF REMARRIAGE

This is a wrongful death case. In addition to damages for the loss of his wife’s companionship
and affection, the plaintiff intends to present a claim for the loss of her household services. An
economist has calculated this loss at approximately $650,000. This figure represents the annual
value of these services over the actuarial life expectancy for Ms. Johnson, adjusted for inflation
and reduced to present value.

Ms. Johnson died in 2006. Mr. Johnson has recently remarried. The plaintiff seeks to exclude
any mention of remarriage from testimony or other evidence. The defense wishes to introduce
evidence of remarriage both to show mitigation of the claim for household services and, more
generally, to reduce the claim for loss of companionship and the other subjective components of
the wrongful death claim.

This issue has not been resolved by the Vermont Supreme Court.

Other jurisdictions have taken three approaches:

       1. The traditional analysis is that wrongful death damages are determined at the time of
death and that a subsequent remarriage is irrelevant. See Estate of Spinoza v. International
Harvester Co., 621 F.2d 1154 (1st Cir. 1980)(construing N.H. law); Sanderson v. Steve Snyder
Enterprises, Inc., 491 A.2d 389 (1985)(construing Ct. law); Speiser, S., Recovery for Wrongful
Death and Injury, Clark, Boardman, Callaghan 1991, § 6.12, p. 33 (3rd Ed.).

       2. Other states have concluded that remarriage is relevant to the calculation of damages,
especially when the plaintiff opens the door by introducing evidence of the financial value of lost
services. Jensen v. Heritage Mutual Ins. Co., 127 N.W. 2d 288 (Wis. 1964); Pena v. Northeast
Ohio Emergency Affiliates, 670 N.E. 2d 268 (Ohio 1995).

       3. New Jersey has chosen a compromise. The jury is informed that the spouse has
remarried, but that they should not consider remarriage in determining the amount of damages.
Dubil v. Labate, 52 N.J. 255 (1965); Cipollone v. Liggett Group, 1987 WL 14666 (D.N.J. Oct.
27, 1987).

The court starts its analysis by noting that two possible outcomes are inappropriate. The first is
that the plaintiff introduces evidence of many decades of lost services without evidence of
remarriage. This would create a false picture of the plaintiff’s pecuniary loss. By choosing to
introduce evidence of the annual cost of lost services, the plaintiff opens the door to evidence of
mitigation. The economist’s tables will show a loss of services for more than 40 years. If
similar services are coming from another person, it is only fair for the jury – considering a claim
in excess of half a million dollars – to consider that information.

Another possible outcome is equally inappropriate. The subjective elements of the loss of a
spouse –companionship, love, affection, and guidance – are qualitatively different from the loss
of help around the house. They cannot be estimated by reference to wages paid to housekeepers
in the relevant labor market. They are not replaced by someone else who can perform the same
tasks. The loss of affection and companionship is fixed at the time of death. It may be
experienced over many years, but it is a basic human truth that any widow or widower never
replaces their lost spouse. This is hardly a new discovery – it underlies the traditional rule in the
majority of states which prohibits evidence of remarriage.

There are many justifications for the rule. Some are theoretical. The wrongful death claim is
thought to be like an asset of the estate which is fixed in value at the time of death. Some
operate by analogy. The comfort derived from remarriage is likened to collateral source
payments by life insurance or other first-party coverage – the result of an action taken by the
plaintiff which should not benefit the tortfeasor. A third justification is that it is speculative or
inappropriate to subtract the companionship afforded by the second spouse from the loss of the
first.

The court recognizes that there is a degree of artificiality in the majority rule of non-disclosure of
remarriage. As defense counsel points out, the life of a person who remarries is – all things
going well – happier than that of a person who does not. But the measure of damages for
wrongful death has other artificial aspects. We do not permit consideration of the grief and pain
experienced through bereavement. The wrongful death statute has never provided a
comprehensive system of compensation. It makes no attempt to restore the widower to the
position he enjoyed before his wife’s death. Instead, recovery is limited to the loss of positive
contributions by the decedent during her lifetime. A widower may – indeed, should – find other
ways to find companionship, guidance, and affection through remarriage, through friendship
with others, through renewed contact with his children, through hobbies and activities or through
any of the other means open to people to rebuild their lives. None of these steps address or
reduce the subjective elements of the loss of his spouse.




                                                   2
The court is satisfied that the better rule is to prohibit evidence or argument of mitigation of the
subjective elements of the recovery by remarriage. Defense counsel has indicated that he only
wishes to touch lightly upon this subject. The court will go a step further and prohibit it
altogether except with respect to the claim for lost services. The lost services claim is
fundamentally different. As this case demonstrates, it is a loss which can be quantified by an
economist. The services can be performed by others. Unlike the loss of a loving companion, the
loss of help around the house can be mitigated.

This analysis leaves the problem of how to deal with the lost services claim. Through the magic
of economic testimony, the role of cook and cleaner and carer for children has been reduced to a
substantial present value figure. If the claim is limited to the years before remarriage, then the
plaintiff’s remarriage is irrelevant and will not be mentioned by either party. If the claim
remains a lifetime claim, then the fact of remarriage comes into the case for purposes of the loss
of household services only. This is a strategic choice to be made by the plaintiff. It must be
disclosed prior to opening statements so that both sides understand whether remarriage is in the
case or out.

                                         CONCLUSION

The motion in limine with respect to remarriage is granted in part for the reasons set out above.

Dated: 1/26/12

                                                             __________________
                                                             Geoffrey Crawford,
                                                             Superior Court Judge




                                                 3
