Illinois, a state already renowned as one of the leading lawsuit capitols of the world, may become even more friendly to plaintiffs and their lawyers seeking to win so-called “nuclear verdicts,” and a more dangerous place to do business, under new legislation sliding quickly toward approval in Springfield, say groups representing the state’s business community.
Before the current spring legislative session adjourns, it is expected the Democratic supermajority in the Illinois General Assembly will approve new legislation that will for the first time allow people suing for wrongful death to take potentially massive punitive damages onto any jury award.
To this point, a family or other legal heirs pressing personal injury lawsuits that involved the death of a family member, such as from a traffic crash or illness caused by environmental contamination, could only seek so-called compensatory or actual damages.
Mark Denzler, president, Illinois Manufacturers' Association
| ima-net.org
That stood in contrast to traditional personal injury claims in which a living person who claimed to be harmed by another’s actions could also tack on demands for so-called punitive damages, or money payouts that are intended strictly to punish the defendants, with an eye toward trying to prevent such harm from happening again.
Under the legislation docketed as House Bill 219, however, the families and estates of those who have died could also press claims for potentially lucrative punitive damages, greatly multiplying the potential payouts in personal injury cases.
Supporters of the legislation, including the Illinois Trial Lawyers Association, say it will enhance “victims’ rights.”
On the floor of the Illinois House, the bill’s chief co-sponsor State Rep. Jay Hoffman, D-Swansea, told his colleagues that the measure was needed to allow “bad actors” to face the risk of potentially painful payouts.
He said he believed a higher standard of proof needed to order punitive damages would be enough to shield defendants from the worst possible effects of the law.
But business groups and Republicans warned the law would only make Illinois – a state already known as being unfriendly to business and employers – even less so.
Mark Denzler, president of the Illinois Manufacturers Association, said the expanded potential for punitive damages will increase insurance costs across the board for employers and consumers, alike, while making manufacturers and other businesses less likely to invest in Illinois.
Denzler was among the most prominent among a coalition of business advocates who spoke against HB219 when it was presented in committee in the House and Senate.
“This will be yet another black eye for Illinois in the eyes of business,” said Denzler.
Supporters of the legislation have included some of the most powerful lawmakers in Illinois, including Speaker of the House Emanuel “Chris” Welch and Senate President Don Harmon.
With their support, the legislation already cleared the Illinois House of Representatives, and, as of May 18, was moving rapidly toward a final approval in the Illinois Senate. If it wins approval there, it would next go to Gov. JB Pritzker, also a Democrat, for approval.
In all, the measure appears set to move from introduction to approval in about three days.
In addition to labor unions and left-wing political action groups, the Illinois Democratic Party is heavily bankrolled by millions of dollars in annual donations from trial lawyers, their firms, and the Illinois Trial Lawyers Association and associated political action committees.
In 2022, for instance, trial lawyers created a special committee specifically to pay for millions of dollars in ads attacking Republican candidates for Illinois Supreme Court. Together with millions in direct campaign donations from Gov. Pritzker, the trial lawyers’ efforts ultimately helped boost the successful candidacies of Illinois Supreme Court Justices Elizabeth Rochford and Mary K. O’Brien, securing Democrats a 5-2 supermajority on the Illinois Supreme Court.
Denzler noted the law comes not long after Illinois Democratic lawmakers already used their supermajority to award trial lawyers a potential financial windfall by rewriting the rules on so-called prejudgment interest.
In spring 2021, Pritzker quietly signed into law legislation that also had been hurried through the Illinois General Assembly that would allow plaintiffs in personal injury and wrongful death cases to tack on demands for 9% interest on judgments that would begin to accrue from the moment the lawsuit was filed. Previously, the law had only allowed such interest to be calculated from the time judgment was entered.
Denzler said HB219 is “déjà vu all over again.
He said it will only further enhance Illinois’ reputation as a haven for trial lawyers and big-money lawsuits. He noted the American Tort Reform Association has designated two of the state’s top court systems, the courts in Cook County and Madison and St. Clair counties, as “Judicial Hellholes” for allowing plaintiffs to allegedly abuse the system.
The Institute for Legal Reform has noted that courts in Chicago and elsewhere in Illinois are among the leading drivers in the U.S. of so-called “nuclear verdicts,” or judgments worth at least $10 million. The ILR noted the increasing size and frequency of the “nuclear” and “mega nuclear verdicts” serve to boost prices for consumers, while making a range of key products, like herbicides used in food production, and essential services, like trucking, more difficult and costly to provide.
Denzler said Illinoisans should expect more of the same, as plaintiffs’ lawyers continue to win new abilities under the law to demand bigger lawsuit payouts.
Supporters of HB219 have contended the law will bring Illinois in line with 34 other states which already allow punitive damages in wrongful death cases.
But Denzler said in most of those other states, punitive damages are capped at maximum amounts. In Illinois, there can be no such cap, because the Illinois Supreme Court has ruled such caps on damages to be forbidden by the state constitution.
“They are opening the floodgates here,” Denzler said.
Denzler further noted the law specifically exempts certain favored employers, notably including state and local governments, hospitals, doctors and lawyers themselves.
Meanwhile, he said, “manufacturers, retailers, hotels, transportation companies, all would be subject to it.”
He noted this apparent double standard would mean private nursing homes could face the risk of punitive damages from wrongful death cases, from outbreaks of Legionnaire’s disease or Covid, while nursing homes operated by government agencies would not.
“They are picking winners and losers again,” Denzler said.