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Lawyers seek to remove damages cap in wrongful death cases

New Hampshire Union Leader - 2/12/2024

Feb. 12—CONCORD — The family of Carol Martin, a 20-year Navy veteran, won a wrongful death claim against the U.S. Veterans Administration after she died in 2007 from a fentanyl overdose given to treat her back pain.

Her husband, Gary, was awarded $150,000 in federal court for loss of companionship, and his four children received $50,000 apiece because of a cap on these damages under New Hampshire insurance law.

Martin's lawyer, Holly Haines, said another client of hers, a family from Wilton, has received more in damages for a mother of five with an irreversible brain injury who is in a North County nursing facility.

"The recovery for someone who is comatose would be unlimited; whether or not the victim has died should have no bearing on the jury's award for loss of spousal consortium," said Haines, who testified last week in support of legislation (SB 462) to lift this cap, which has remained unchanged for 25 years.

Insurance Commissioner D.J. Bettencourt, lawyers and insurance industry lobbyists warned that lifting this the cap could cause jury awards to increase, which could damage a market that already is too costly for many small business owners.

"There is nothing to prevent so-called nuclear amounts awarded in a wrongful death case," said Chris Appel, a Washington, D.C., lawyer representing the American Tort Reform Association.

The legislation has bipartisan support. Senate Majority Leader Sharon Carson, R-Londonderry, is the chief sponsor, and co-signers include Senate Democratic Leader Donna Soucy of Manchester.

Among states that allow recovery for the loss of companionship in wrongful death cases, the cap is one of the lowest in the country, Haines said.

About a dozen states don't permit damages for loss of companionship, but those states do allow wrongful death recoveries to the extent of financial or non-economic losses, including future lost earnings.

NH awards among smallest

Advocates for the bill say damages for loss of companionship award can be the only award available if, for example, the victim was a homemaker who was not working when they died.

Haines pointed to a federal judge who in 2011 chose to apply Maine's$500,000 damages cap rather than New Hampshire's in a case because it better "served the interests of justice."

The late U.S. District Court Judge Joseph DiClerico once described New Hampshire's cap as being in the "backwater of the modern stream" when it came to recovery of damages.

In 2023, Maine raised its cap to $1 million.

The only other caps on damage recovery in New Hampshire law are a $475,000 cap on damages brought against the state or cities and towns and a maximum $1 million limit on damages from the volunteer of a nonprofit organization.

On three occasions from 1980 to 1999, the New Hampshire Supreme Court struck down other caps in state law on awards of non-economic damages as unconstitutional.

"This one-size fits all approach is kind of shocking to me," said David Slawsky, who represented the surviving family of a woman who died in 2013 from pancreatic cancer after living near the former Saint Gobain Performance Plastics plant in Merrimack.

Slawsky said New Hampshire does not have the history of runaway jury verdicts that other states have, including California and Florida.

Insurance rates rising

Bettencourt said the cost of liability insurance has climbed in recent years because of inflation, high interest rates, supply chain shortages and weather-related disasters across the country.

Nonprofits providing inpatient mental health treatment in New Hampshire find it especially hard to afford premiums, he said.

"This law would represent a financial risk for an insurer that would factor into their underwriting guidelines," Bettencourt said.

The industry had opposed setting the existing caps in 1998 but accepted it as a compromise because some lawmakers sought still higher damage amounts.

The Legislature should seek an actuarial study on the impact of such a change before approving it, said George Roussos, a lawyer/lobbyist who represents both domestic and property/casualty insurance associations.

"It would be very good to make that determination about increased costs rather than guessing what they might be," Roussos said.

Before her death, Carol Martin, 41, was treated by the VA for more than a year for bipolar disorder, PTSD and a borderline personality disorder that Haines said was well managed with medication.

Martin was given fentanyl and morphine after an Oct. 7, 2007 fall that triggered pain from a serious back injury she received in the Navy.

Sent home the following day with a fentanyl patch and prescriptions for morphine and oxycontin, Martin complained about serious side effects, but doctors told her to resume wearing the fentanyl patch.

She died of an acute overdose three days after the fall.


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