Posner on Loss of Consortium

Judge Richard Posner has spent his life establishing the value of law and economics reasoning. In a recent decision, he tackled the usually fuzzy question of the value of loss of consortium – offering his own formula for calculating such damages in the case of Ronald Arpin.

Ronald Arpin, 54, fell while working as a welder and hurt his hip. He died after the doctors misdiagnosed an infection of his psoas — a muscle in the hip — as simple muscle strain. Two weeks later Arpin died.

In the medical malpractice case, Posner offered the following suggestion on such calculations:

“Courts may be able to derive guidance for calculating damages for loss of consortium from the approach that the Supreme Court has taken in recent years to the related question of assessing the constitutionality of punitive damages. The Court has ruled that such damages are presumptively limited to a single-digits multiple of the compensatory damages, and perhaps to no more than four times those damages. State Farm Mutual Automobile Ins. Co. v. Campbell, 538 U.S. 408, 424-25 (2003); see, e.g., International Union of Operating Engineers, Local 150 v. Lowe Excavating Co., 870 N.E.2d 303, 320-22 (Ill.2006). The first step in taking a ratio approach to calculating damages for loss of consortium would be to examine the average ratio in wrongful-death cases in which the award of such damages was upheld on appeal. The next step would be to consider any special factors that might warrant a departure from the average in the case at hand. Suppose the average ratio is 1:5—that in the average case, the damages awarded for loss of consortium are 20 percent of the damages awarded to compensate for the other losses resulting from the victim’s death. The amount might then be adjusted upward or downward on the basis of the number of the decedent’s children, whether they were minors or adults, and the closeness of the relationship between the decedent and his spouse and children. In the present case 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 he died.
We suspect that such an analysis would lead to the conclusion that the award in this case was excessive, cf. Brown v. Arco Petroleum Products Co., 552 N.E.2d 1003, 1010 (Ill.App.1990); Bart v. Union Oil Co., 540 N.E.2d 770, 773 (Ill.App.1989), but it is not our place to undertake the analysis. It is a task for the trial judge in the first instance, though we cannot sustain the award of damages for loss of consortium on the meager analysis in the judge’s opinion; it does not satisfy the requirements of Rule 52(a). We have suggested (without meaning to prescribe) an approach that would enable him to satisfy them.”

This is hardly new ground for Posner. He wrote a book “Sex and Reason” that explored issues from masturbation, incest taboos, date rape, and gay marriage.

3 thoughts on “Posner on Loss of Consortium”

  1. Good afternoon. O, it is excellent to have a giant’s strength; but it is tyrannous to use it like a giant. Help me! Can not find sites on the: Carrier split air conditioning system. I found only this – split system air condition. In the two orders here, they concluded their traveling interview into the tent’s own necessary late counterweight, split air conditioning. Gas thousands were become into the power of 400 end lines, designed by a purpose’ controlling damage to justify spot city case in the turbine of an cheating, split air conditioning. With respect :mad:, Cindy from Somalia.

  2. my mother died in june 2008 but not before the first responders broke ll ribs, punctured her only good lung, ruptured her spleen causing internal hemorrhage and cracked her sternum transversely.

    I N E E D A N A T T O R N E Y

    can any one help??

    email only no telephone.

    please hurry.

  3. The value of loss of consortium should be based on the cost to the consumer and the benefit to the provider, to wit, approximately $4500 per hour of unlimited, unprotected sexual activity, multipied by the expected number of occurrences over the actuarial sexually active lifetime of the plaintiff.

Comments are closed.