Alabama law concerning wrongful death claims is unique. Our law differs from every other state in an essential area — the damages recoverable. In Alabama, only punitive damages are recoverable in wrongful death claims. I’ve handled many death claims through the years and this unique issue presents many practical challenges.

I’ve previously written about the interaction of Alabama’s survival statute with its unique approach to wrongful death claims. With that in mind, here is a novel observation about a future strategy for handling wrongful death damages in Alabama. The strategy is one my retired law partners and I discussed and proposed. We previously wrote and distributed the strategy which I am republishing below —

A NOVEL APPROACH TO WRONGFUL DEATH DAMAGES IN ALABAMA

Here is a strategy that legal counsel might find helpful in wrongful death cases in Alabama.  Again, in Alabama (the only such state), there are no compensatory damages in wrongful death cases.  That means no recovery for medical expenses; no recovery for pain and suffering; no recovery for the huge financial impact to a family when a father or mother is killed.

The unique nature of Alabama law is not present because of some explicit statutory language.  It is a creation of our court.  Alabama courts have concluded that life is priceless and therefore not amenable to crass valuation in dollars.  The only allowable damages are punitive.

Yet, in all cases where punitive damages are claimed, the plaintiff can expect from the defense a long list of boilerplate challenges suggesting that punitive damage rules are unconstitutionally vague.  These defenses or motions to dismiss or strike contend that punitive damages should not be allowed because there is no objective standard by which to measure such damages.  In other types of cases where compensatory damages are also allowed, the law does impose some standards by which to measure punitive damages in conjunction with the compensatory damages assessed.  However, in the wrongful death context in Alabama, these objective comparisons are not present.  The truth is that, as presently applied and in the abstract, these challenges to punitive damages in wrongful death claims are probably correct.  The pattern jury instruction on punitive damages in Alabama also provides little guidance on this issue.

With this background, what is the novel strategy that could be argued in wrongful death cases in Alabama?  It is a pre-trial offer of proof stating the following:

The defendant has contended that there is no objective standard to direct a jury with regard to punitive damages.  In analogous criminal cases (such as criminally negligent homicide cases) the Court is required by law, before setting sentence, to initiate a victim impact statement pursuant to Ala. Rules of Criminal Procedure, Rule 26.3(7), which includes the economic and psychological impact on the family members.  Therefore, the plaintiff offers to provide proof to the jury of the financial and psychological impact of the death of the victim on the victim’s immediate family members.  The plaintiff will provide evidence of victim impact from the victims themselves as well as through expert testimony from professionals such as physicians, psychologists, and economists.  Additionally, pursuant to Ala. Rules of Criminal Procedure, Rule 26.8, the application of punishment requires a full evaluation of the wrong and all its consequences.

If accepted, the plaintiff could then provide testimony concerning the impact of the death upon the remaining family members.  The offered approach does not conflict with the Alabama cases holding that a dollar value cannot be placed on the victim’s life.  Rather, the emphasis is on the impact of the wrong as a necessary part of reaching a reasonable decision as to the level of appropriate punishment to assess as punitive damages.

Although judges with whom this approach has been discussed and to whom this approach has been made have expressed great interest and intrigue, Alabama courts have yet to rule on such an offer of proof.  On the occasions where we have made this offer in the past, a settlement for the applicable policy limits has soon followed.  As a result, we have not yet pursued the issue to completion in Alabama’s court system.  In conversations with opposing counsel, we believe most defendants and their counsel do not wish to test this approach at an appellate court level.