The Hollywood Reporter reports today that the death of Lisa Robin Kelly at a drug rehabilitation facility in California (“Pax House”) has spawned a wrongful death lawsuit by her former husband, Robert Gilliam. (http://www.hollywoodreporter.com/thr-esq/estranged-husband-70s-show-actress-710636). The story seems to indicate that Mr. Gilliam was “estranged” from Kelly in the period shortly preceding her death. The allegations as set forth in his complaint are that he was trying to get Kelly into a drug rehab closer to their former home in N.C. and that he had a loving relationship with Kelly and, therefore, valid claims as a widower.
What is the standard under California law for damages in a wrongful death lawsuit?
Obviously, Mr. Gilliam will have to prove that the drug rehabilitation facility is liable for the death of Ms. Kelly, which require showing that they fell below the standard of care for a health practitioner in the business of providing addiction treatment. He will also need to show that this was a legal cause which contributed in more than a trivial way to the death. If he does prove these allegations, however, he must then demonstrate the value of his claim (i.e. his “damages”).
As with any personal injury or wrongful death claim in California, damages for the death of an adult person fall into two categories as follows: (1) “Economic Damages”; and (2) “Non-Economic Damages”.
Economic Damages: The laws of CA basically describe out of pocket losses for the death of an adult person in four categories:
- Lost Family Income: California Jury Instruction 3921 describes the available claims for lost income as follows: “The financial support, if any, that the decedent would have contributed to the family during either the life expectancy that had before [his/her] death or the life expectancy of the plaintiff, whichever is shorter.” This means that it must be shown through documents such as wage statements or bank records that the person who died was providing at least some financial support to the person claiming injury. A related Cal. jury instruction provides a formula for figuring out the “life expectancy” of people based upon their age, sex and other factors and, if it can be shown that the person killed was able to earn money for their entire life, the amount of annual income is multiplied over the number of the “shorter” of the life expectancy in years of either the person who died or their survivor.
- Lost “Gifts or Benefits”: The term “gifts” is not really defined and could mean any number of things. “Benefits” usually mean things like insurance or other similar things.
- Funeral and Burial Expenses
- Reasonable Value of Household Services: This can include the cost of hiring persons to handle household chores or child care if the decedent was providing those services prior to death.
In the present case, Mr. Gillam will probably be only seeking lost income. This will require a showing that he was receiving income or support from Ms. Kelly prior to her death. This may entail showing of both residual income (if any) from “That 70’s Show” as well as future acting jobs. In order to be compensable, any alleged future income must be more than “speculative” in nature (i.e. there must be a reasonable likelihood that Ms. Kelly would have obtained jobs in the future that would have paid Mr. Gillam income or spousal support).
Non-Economic Damages: California personal injury law provides that the surviving spouse or children of a person killed by the negligence or intentional wrongdoing of another person or company may receive the value of the, “loss of love, companionship, comfort, care, assistance, protection, affection, society, moral support” and, in the case of a deceased husband or wife, the “loss of sexual relations”. There is no, set standard on calculating these damages. However, the law asks a jury not to consider three things in coming to a decision on a non-economic damage wrongful death award, which are as follows:
- “Grief, sorrow or mental anguish”;
- “Pain and suffering”; and
- “The poverty or wealth of the plaintiff.”
Again, putting liability issues aside, in my opinion as a California wrongful death attorney, this will really be where the heart of the matter lies in the Gillam case. Mr. Gillam will need to show that his loss of “love, companionship, etc.” has value by showing the nature of his relationship with Ms. Kelly in the time frame leading up to her death. His allegations are that they had reconciled their relationship and he was in the process of trying to help her recover from drug addiction. The defense will, obviously, argue that the marriage was strained and that the two were not close in the years and months leading up to the death of Ms. Kelly. It will be up to a jury to decide these issues assuming the case survives any “dispositive” motions such as a Motion for Summary Judgment.