A bill signed into law last week that allows individuals and businesses to be subject to punitive damages awards in wrongful-death cases may make Illinois’ business climate even more challenging and fraught with legal risk for employers, legal observers say.
And the controversial law could also face future challenges in court under Illinois' state constitution.
On Aug. 11, Illinois Gov. JB Pritzker signed into law the legislation known as House Bill 219. The new law was heavily backed by the state's powerful trial lawyers, and was pushed through the General Assembly rapidly by their allies among Springfield's Democratic supermajority, notably including state Rep. Jay Hoffman (D-Swansea.)
Attorney Donald P. Eckler said the new law may face state constitutional challenges.
| Freeman, Mathis & Gary
Trial lawyers heavily support Democratic politicians in the state, to the tune of millions of dollars in campaign donations annually.
HB219 changes the Illinois Wrongful Death Act and Survival Act by allowing plaintiffs for the first time in the state's history to tack potentially massive punitive damage awards onto jury verdicts against defendants targeted by personal injury lawsuits that also allege wrongful death against people and businesses accused of engaging in reprehensible, reckless or intentional conduct.
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. 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.
“Allowing punitive damage awards in cases involving the ultimate tragedy – the death of an individual – is likely to increase jury awards and contribute to social inflation,” attorney Scott Seaman of Hinshaw & Culbertson LLP said in a blog post this week on the website JD Supra.
Donald P. Eckler of the Freeman, Mathis & Gary law firm said businesses generally can’t take preventative measures to avoid punitive damages awards because they are not covered by insurance. But Eckler also said claims of punitive damages are relatively rare, tending to come up in cases involving sexual assault or battery and product liability.
“I don't know how much it changes the behavior of defendants,” he told the Cook County Record. “It doesn’t happen all that often that defendants act in a manner that could even arguably expose them to punitive damages."
Eckler added: “How does it affect the business climate? It certainly doesn’t help it.”
Eckler said the law could have a bearing on product-liability cases, particularly in lawsuits in the state's massive docket of personal injury claims related to asbestos.
The abundance of such cases particularly have made courts in downstate Madison and St. Clair counties notorious among tort reform advocates nationwide.
“Where I see this maybe becoming an issue is, I think, in the asbestos context,” Eckler said. “I expect that what they are going to argue is that the defendants in the asbestos context knew of the dangers, didn’t tell anybody and exposed people to asbestos anyway.”
Kathy Byrne, president of the Illinois Trial Lawyers Association, said the new law was a logical extension of potential punitive damages awards, since such damages are currently allowed in injury cases.
“The enactment of House Bill 219 provides that punitive damages are now also available when a defendant’s reprehensible behavior results in a victim’s death and are subject to the same burden of proof and standards of review applicable to punitive damages in injury cases,” Byrne said in a statement. “Now the inequity that perversely rewarded the reprehensible behavior of a defendant for killing the plaintiff versus ‘merely’ injuring them has been removed. This law is fair and makes common sense.”
Under the new law, punitive damages can’t be sought in an opening legal complaint, Eckler said.
“The general idea is you’ve got to show more than mere negligence,” he said.
He noted the law still does not allow punitive damages to be recovered from doctors, attorneys or government entities.
But the law may yet rest on a constitutionally questionable foundation. As with a growing number of controversial laws, HB 219 did not pass through the General Assembly in the manner prescribed by the Illinois state constiutution.
The state constitution mandates that all legislation be read at least three times on different days in each of the General Assembly's two chambers, the state House of Representatives and the state Senate. HB219 appeared to receive only two readings in the House before it was approved.
But under the state’s so-called “enrolled bill doctrine,” the Illinois Supreme Court requires courts to assume the laws were legally approved in compliance with the state constitution, so long as Speaker of the House Emanuel "Chris" Welch and State Senate President Don Harmon simply sign a certification saying that the three-readings rule and other constitutional requirements were followed.
That practice has come under intensifying scrutiny in recent months, as two state appellate courts and two justices on the Illinois Supreme Court have called on the court's Democratic majority to revoke the enrolled bill doctrine, and require lawmakers to abide by the state constitution, as written, when making laws.
In recent years, lawmakers have prominently used the enrolled bill doctrine to fend off lawsuits challenging the constitutionality of several highly controversial and constitutionally questionable laws, including the so-called SAFE-T Act, which abolished cash bail in Illinois, and the state's ban on so-called "assault weapons." Both of those sweeping measures were rammed through the General Assembly rapidly with minimal debate, appearing to ignore the three readings rule.
The new law allowing punitive damages for wrongful death cases could be challenged based on the three-readings rule, Eckler said, perhaps offering the state Supreme Court another opportunity to decide whether to again ignore the calls for action from their judicial colleagues and those targeted by the new laws.
Jonathan Bilyk contributed to this report.