TEA.2.5

Description

The term “personal injury litigation” is often used to include both personal injury litigation involving individuals who have survived their injuries and wrongful death (or “survival action”) litigation involving individuals who have not survived their injuries. However, substantial differences exist in the standards for loss recovery between personal injury litigation and wrongful death litigation. (Survival actions involve many differences that will not be treated in this paper.) In a personal injury action, the loss recovery language often specifies that individuals may recover for the lost “earning capacity” that results from injuries and for lost ability to produce nonmarket services. In a wrongful death action, the standard for recovery is the loss by survivors of financial support and nonmarket services the decedent would have provided to survivors if death had not occurred. This paper considers the distinction between “expected lost earnings” and “lost earning capacity” as they apply to wrongful death litigation. In general, it concludes that the standard must be “expected lost earnings,” but considers special circumstances in which the loss of earning capacity by a decedent may represent a loss to survivors.