Expert Testimony Not Needed to Substantiate Pecuniary Value of Loss of Child’s Advice, Guidance, and Companionship in Wrongful Death Action

This case arises from a tragic highway collision in which the defendant Stephen Rando’s SUV fatally struck the plaintiff’s son, Patrick Dutton, as he was riding his bicycle. The jury found that the defendant was 60% responsible for the accident while the plaintiff’s son Patrick was 40% responsible. The jury awarded the plaintiff, Patrick’s mother, Mary Dutton, representing her son’s estate, $500,000 in wrongful death damages and $108,000 in survivorship damages. The issue on appeal in the published decision of Dutton v. Rando, 2019 N.J. Super. LEXIS 27 (App. Div. Feb. 26, 2019), was whether an expert was needed for the jury to consider the wrongful death damages that the plaintiff claimed for the pecuniary value of the loss of her son’s advice, guidance, and companionship.

This lawsuit was filed under both the New Jersey Survivors Act, as well as the New Jersey Wrongful Death Act, alleging that the defendant’s negligent operation of his motor vehicle caused Patrick’s death. The defendant, on an in limine motion (a motion brought before trial), argued that the plaintiff’s wrongful death claim was barred because the plaintiff was not planning on introducing any evidence to substantiate the replacement cost of Patrick’s advice, guidance, and companionship. Such evidence would typically be offered through the use of an expert. The trial court denied the motion, finding it premature to decide whether the plaintiff had presented a factual basis for damages. The jury trial then proceeded.

At trial, the plaintiff did present testimony concerning her relationship with her son. Patrick’s Aunt Irene testified that Patrick had been living with her in the year prior to his death, while plaintiff lived in a homeless shelter. Patrick’s older brother testified that Patrick had been putting aside money every week to buy plaintiff a house or an apartment, saving between $20 and $50 per paycheck. Patrick’s aunt corroborated his brother’s account, although she recalled that Patrick had been saving between $50 and $75 per week and that he had intended to buy a car before purchasing a family home. Irene also testified that Patrick was a hard worker, working two jobs.

Plaintiff also testified that the companionship Patrick provided her was “definitely one of the important things” in her life. They spoke on the phone on a nightly basis and saw each other once or twice per week to have meals together, go to the park, or walk on the boardwalk among other activities. She testified that “he comforted her with his words, sense of humor and displays of affection.”

At the end of the plaintiff’s case, the defendant moved for an involuntary dismissal of the wrongful death claim. He renewed his argument that the plaintiff had not provided any evidence of the pecuniary value of Patrick’s services provided to plaintiff and that no reasonable juror could find the plaintiff had established proof of damages. However, the trial court denied the motion. Thereafter, the jury entered an award, finding defendant 60% liable and Patrick 40% liable for the accident and awarded $500,000 for the pecuniary loss of Patrick’s advice, counsel, and companionship on the Wrongful Death Claim and $108,000 for Patrick’s pain and suffering on the Survivor’s Act claim.

Upon appeal, the defendant argued that either expert or other specific testimony was required as a matter of law to establish the economic value of Patrick’s lost companionship. The defendant argued that without such testimony, the verdict could have only been premised on “pure speculation coupled with sympathy, passion and prejudice.”

The Appellate Division noted that under New Jersey’s Wrongful Death Act, when a defendant is liable for negligently causing a person’s death, the jury may award “such damages as they shall deem fair and just with reference to the pecuniary injuries resulting from such death, together with the hospital, medical and funeral expenses incurred for the deceased, to the persons entitled to any intestate personal property of the decedent.” Prior case law made clear that a pecuniary loss could include the lost value of the decedent’s companionship and advice which would be limited strictly to the pecuniary element of such services as determined by what the marketplace would pay a stranger with similar qualifications for performing such services. (Green v. Bittner). Further, under Green v. Bittner, the Supreme Court found that our wrongful death statute is “too clear to allow compensation, directly or indirectly for emotional loss.”

The Appellate Division further noted that under New Jersey law, in cases involving the death of a child, the plaintiff may recover for “the pecuniary value of the child’s companionship, including his or her advice and guidance, as the parents grow older.” The jury is to focus on the existence of the relationship and the value of the advice, guidance and counsel that inhere in it. Once the parent-child relationship is established, the jury should “employ an objective standard for calculating the value of advice, guidance and counsel” based upon what the marketplace would pay for those lost services.

Importantly, even though the assessment of pecuniary losses from a decedent’s death may be burdened with the element of speculation, according to the Supreme Court, the determination of such questions “are not so beyond the common knowledge and common experience of jurors” to make expert testimony mandatory. While it is helpful, it is not necessary to use an expert to place a value on prospective services.

The Appellate Division found that the issue of the plaintiff’s wrongful death damages was properly submitted to the jury. The plaintiff had presented testimony showing that Patrick’s death caused the loss of future financial contributions to Plaintiff. Further, there was ample testimony regarding the companionship services that Patrick offered to the plaintiff. Based upon this evidence, the Appellate Division found that the plaintiff had established a pecuniary injury.  The jury was entitled to determine the value of those services from lay testimony using its “common knowledge and experience.” Hence, the Court agreed that no expert testimony was necessary to establish the pecuniary value of such services. Accordingly, it affirmed the trial court’s denial of the defendant’s motion for the involuntary dismissal of plaintiff’s wrongful death claim, upholding the jury verdict.

Tags: damages, expert