In 2009, the Maine Legislature eliminated ten words from the state’s wrongful death statute. Although this bit of lawmaking was marked by little fanfare, it profoundly reshaped the scope of damages available to grieving beneficiaries of such claims in Maine. Prior to the 2009 amendment, Maine’s wrongful death statute provided, in pertinent part:
The jury may give such damages as it determines a fair and just compensation with reference to the pecuniary injuries resulting from the death to the persons for whose benefit the action is brought…
18-A. M.R.S.A. § 2-804 (b) [repealed and replaced by 18-A M.R.S. §2-807 (2010) (Emphasis added].
When—with the passage of the 2009 amendment—the “to the persons for whose benefit the action is brought” clause was omitted, what might have appeared to have been a small change portended major developments to Maine tort law.
It would just take some time—more than ten years, to be precise—for those changes to be woven into our jurisprudence.
Pre-2009: A Loss-to-Survivors Approach
Under the original language contained in the pre-amendment statute—referred to as a “loss-to-survivors” approach—a wrongful death beneficiary could recover only those pecuniary losses they could prove to have individually suffered as a result of the decedent’s death. As a result, if the decedent in a wrongful death action died without a minor child or a spouse, the scope of pecuniary damages would typically be much less than if the same person left behind surviving immediate family under identical circumstances. As a practical matter, this meant that a tortfeasor’s financial exposure in a pre-2009 wrongful death action hinged, in large part, on the decedent’s family circumstances.
Post-2009: A Loss-to-Estate Approach
The 2009, amendment removing the “persons for whose benefit” clause relieved beneficiaries of their obligation to prove the extent of loss to specific immediate family of the decedent. The new language read, in pertinent part:
The jury may give damages as it determines a fair and just compensation with reference to the pecuniary injuries resulting from the death.
18-A M.R.S. §2-807 (2010) [repealed and replaced by 18-C M.R.S.A. §2-807(2) (2019)].
This 2009 shift in language—what amounted to a “loss-to-estate” approach—opened the door for full recovery of pecuniary damages to the estate of the decedent, including future lost earnings. Under the loss-to-estate approach, the damages are based not upon vagaries of proof as to losses of the individual beneficiaries, but upon the likely future earnings of the decedent. Rooks, Jr., Recovery for Wrongful Death §§ 12:52-12:56 (2021).
A significant development in creating a more equitable environment for wrongful death claims, the 2009 revision enabled parents in Maine to recover for the future lost earning capacity of a deceased child for the first time. Faced with expanded availability of damages, some in the defense bar continue to discount the revision and insist pecuniary damages still require proof of loss by specific beneficiaries. Unfortunately, this can have the effect of stifling meaningful settlement discussion and, more concerning, may convince some practitioners to abandon otherwise-viable damage claims in mistaken reliance upon cases decided under the former statute.
Berman & Simmons Successfully Argues Loss of Earnings to Estate of Peter Smith
Despite the passage of more than ten years, there have been surprisingly few decisions on point, and the Law Court has not yet considered the language. Recently, Berman & Simmons attorneys Jodi L. Nofsinger and Sarah K. Hall successfully argued that the 2009 revision of Maine’s wrongful death law substantively changed the scope of available damages and eliminated the need to prove loss to specific individuals. Despite defendants’ claim that the statutory language was ambiguous and such damages exceeded the compensatory purpose of tort damages, Superior Court Justice John O’Neil, Jr., denied defendants’ Motion for Partial Summary Judgment. In the most authoritative statement on the 2009 revisions to the Maine wrongful death statute to date, Justice O’Neil unequivocally held:
The statute allows a wrongful death plaintiff–a personal representative or special administrator–to seek pecuniary damages resulting from the death, for the benefit of the estate and its beneficiaries. This includes the loss of the deceased’s future earnings, regardless of whether the estate’s beneficiaries suffered any actual loss.
Angela and Richard Smith, as Personal Representatives of the Estate of Peter Smith v. John Henson, MD, Mercy Hospital and Eastern Maine Health Care Systems, CUM-CV-21-151, Order on Defendant’s Motion for Partial Summary Judgment, May 23, 2022 (J. O’Neil Jr.).
This decision paves the way for the Smith family to hold defendants accountable for damages resulting from the untimely the loss of their son, Peter. Peter Smith passed away from complications of Lyme disease, that went undiagnosed and untreated despite multiple medical appointments. At only twenty-five, Peter had his whole life ahead of him. A recent graduate of Temple University, Peter had joined a Big Four accounting firm and was working towards his CPA license. Everyone who knew him speaks of his charismatic personality and his strong work ethic. The eldest of six, Peter was a natural leader and supportive sibling and friend. There is little doubt that he had a bright future ahead of him. Under the old statute, recovery of damages by his parents would have been limited absent specific proof that Pete would have provided for them financially throughout his life. Under the revised language, Berman & Simmons attorneys were successfully able to argue that the defendants are accountable to Peter’s estate for the same measure of damages, regardless of his marital or parental status.
Building on Earlier Victories
The Smith Court’s decision builds on and reinforces an earlier Berman & Simmons win on a similar issue in the U.S. District Court for the District of Maine, in which U.S. District Judge George Singal permitted recovery of pecuniary damages by the plaintiff stemming from the death of his son, without requiring proof that the child would have supported the father had he survived. Fitzpatrick v. Cohen, 777 F. Supp. 2d 193, 194-5 (D. Me. 2011).
That the latest victory on this issue comes more than a decade after Judge Singal’s holding in Fitzpatrick evidences the defense bar’s resistance to the change. More importantly, however, it demonstrates the depth of Berman & Simmons’ ongoing commitment to redefining and protecting the contours of plaintiff-friendly personal injury law through effective research and advocacy. Results such as those achieved in Smith lay the framework for better outcomes for our current clients and pave the way for others in the future.
The wrongful death statute was amended again in 2019, and this revision retained the 2009 language allowing the decedent’s heirs to recover for “pecuniary injuries resulting from the death” without limitation as to the beneficiaries. 18-C M.R.S.A. § 2-807(2) (2020).