2023 IL App (3d) 220232
Opinion filed May 10, 2023
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2023
PAUL PASSAFIUME, as Independent ) Appeal from the Circuit Court
Administrator of the Estate of Lois ) of the 13th Judicial Circuit,
Passafiume, Deceased, ) Grundy County, Illinois,
)
Plaintiff-Appellee, )
) Appeal No. 3-22-0232
v. ) Circuit No. 17-L-7
)
DANIEL JURAK, D.O., and )
DANIEL JURAK, D.O., S.C., ) Honorable
) Lance R. Peterson,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE BRENNAN delivered the judgment of the court, with opinion.
Presiding Justice Holdridge and Justice Albrecht concurred in the judgment and
opinion.
____________________________________________________________________________
OPINION
¶1 Plaintiff, Paul Passafiume, acting as an independent administrator of Lois Passafiume’s
estate, filed a complaint against, inter alia, defendant, Daniel Jurak, alleging medical malpractice
and seeking recovery under the Wrongful Death Act (740 ILCS 180/2 (West 2014)). 1 Lois passed
away at age 34. A jury found Jurak, Lois’s primary care physician, negligent in his management
1
Plaintiff also sought recovery under the Survival Act (755 ILCS 5/27-6 (West 2014)), not at
issue here.
of her blood clot. The jury awarded $2,121,914.34 in damages, which was reduced to
$1,697,531.48 based on its finding that Lois was contributorily negligent. Jurak only challenges
the damages award. His primary argument is that the trial court erred by allowing the jury to
consider damages for the loss of material services (i.e., household chores) beyond the date of
plaintiff’s remarriage. For the reasons that follow, we affirm.
¶2 I. BACKGROUND
¶3 A. Motions in Limine
¶4 Prior to trial, Jurak filed several motions in limine seeking to limit evidence concerning the
value of lost household services beyond the date of plaintiff’s remarriage, which occurred
approximately 15 months after Lois’s death. In motion in limine No. 20, Jurak moved to bar
plaintiff’s expert, economist Stan Smith, from offering opinions and calculations regarding
plaintiff’s loss of household services and family guidance/accompaniment. As to household
services, Jurak argued that Smith’s testimony was speculative in that it spoke more to general labor
trends than to the specific household services provided by Lois. As to both household services and
family guidance/accompaniment, Jurak also argued that, as part of a consortium claim, these
elements were not amenable to expert testimony addressing the commercial value of those
services. Jurak contended that such testimony was at best marginally relevant and had the potential
to mislead the jury.
¶5 In motion in limine No. 25, Jurak moved in the alternative to limit any of Smith’s opinions
and calculations regarding plaintiff’s loss of household services to the period preceding plaintiff’s
remarriage. Jurak essentially argued as follows. Material services, i.e., household services, were
part of a consortium claim. Further, the components of a consortium claim—loss of material
services, loss of society, loss of companionship, etc.—composed a conceptualistic unity that could
2
not be dismembered into material and sentimental benefits. That plaintiff was able to place a
monetary value on the loss of household services does not, in Jurak’s view, remove the loss of
household services from a consortium claim. Damages for loss of consortium terminate upon
remarriage (Carter v. Chicago & Illinois Midland Ry. Co., 130 Ill. App. 3d 431, 436 (1985)), and,
as household services were an indivisible part of a consortium claim, damages for loss of
household services also terminate upon remarriage. Jurak relied on Dotson v. Sears, Roebuck &
Co., 157 Ill. App. 3d 1036 (1987) (Dotson I), and Dotson v. Sears, Roebuck & Co.,
199 Ill. App.
3d 526 (1990) (Dotson II) (First District cases interpreting Elliott v. Willis,
92 Ill. 2d 530 (1982)),
in support of his position.
¶6 Plaintiff responded to Jurak’s motion in limine No. 25 as follows. Plaintiff accepted
Carter’s holding that damages for loss of consortium terminate upon remarriage. He continued,
nevertheless, that loss of consortium and loss of financial support are distinct and independent
remedies under the Wrongful Death Act. Damages for loss of financial support do continue beyond
the date of remarriage. The loss of material services should be categorized as the loss of financial
support rather than the loss of consortium. And, as the law permits damages for the loss of financial
support to extend beyond the date of remarriage, Smith should be permitted to testify to opinions
and calculations regarding plaintiff’s loss of material services beyond the date of plaintiff’s
remarriage. Plaintiff relied on Pfeifer v. Canyon Construction Co., 253 Ill. App. 3d 1017 (1993),
in support of his position.
¶7 The trial court ruled as follows. As to motion in limine No. 20, it would allow the expert to
testify to opinions and calculations regarding the loss of household services, but it would bar the
expert from testifying to the same regarding the loss of family guidance/accompaniment. As to
motion in limine No. 25, it would allow evidence, including expert testimony, concerning the value
3
of plaintiff’s loss of household services beyond the date of plaintiff’s remarriage. Addressing both
rulings in conjunction, the court explained:
“[T]he two cases are Dotson and Pfeifer. I’ve read them both. … When you read Pfeifer,
[the] logic to me [is] that these types of household services that can be easily quantifiable
just like lost wages, just like financial support[.] … [In contrast,] Pfeifer just cites Black’s
Law definition [of consortium], [and] it’s all about personal, very personal relationship
things that … a jury is the only entity that can place a dollar amount on[.] [Y]ou can’t
have some expert quantify that [personal relationship], unlike financial support, unlike
what it would cost to have your house cleaned, your dishes done[,] and your yard mowed.
So I am going to make a ruling that they are not part of loss of consortium … . So [Smith]
will be allowed to testify beyond the remarriage date on that one portion, that household
services portion that I allowed.” (Emphasis added.)
¶8 B. Trial
¶9 At trial, Smith, qualified as an expert economist, testified that plaintiff retained him to
analyze plaintiff’s loss following Lois’s death. Smith opined that the value of plaintiff’s loss of
financial support, calculated by taking Lois’s lost wages plus Lois’s lost employment benefits
minus her personal consumption, was $913,881. Smith considered that Lois, who had a high school
degree, had been working as a clerk for the Village of Braceville for the last seven years. The
position was for 30 hours per week. Lois’s salary had been rising at a steady rate and, in 2013, her
last full year of employment, she earned $23,700. In addition, she received IRA and Social Security
benefits. Smith accounted for continued salary growth, anticipating that Lois would be earning
$35,000 in 2021. However, Smith also attributed a discount value to future earnings, explaining
for example that the present cash value of $1000 to be received 10 years in the future might be
4
approximately $900 due to lost investment potential. Smith stated that his numbers should be
adjusted upward 2 to 3% due to inflation that occurred from the 2020 date the analysis was
completed to the 2021 date of the trial. Smith considered that Paul had stated that Lois enjoyed her
job and planned to work as long as she remained healthy. Smith’s total value of $913,881 was
based on a retirement age of 67. However, if the jury believed that Lois would have retired at 57
or 77, they could subtract or add approximately $28,500 per year.
¶ 10 Smith further opined that the value of plaintiff’s loss of household services was $998,158.
Smith explained that economists have been placing economic values on household services for
decades. Smith had received information from plaintiff about the nature of Lois’s housekeeping.
Lois and plaintiff had lived in a three-bedroom, single family home. Lois cleaned, cooked, did
laundry, did yard work, and helped pay the bills. On average, she spent two to three hours per day
doing these sorts of chores. Smith also considered data tables that projected over time how much
time Lois might spend performing such tasks in the future.
¶ 11 Jurak’s counsel unsuccessfully objected numerous times during Smith’s testimony, stating
“objection, motion in limine, preservation.” One such objection occurred following Smith’s
testimony that he generally assumes a person will do some amount of housework for as long as
the person is physically able.
¶ 12 On cross-examination, Smith further explained the $998,158 calculation for loss of
household services. From his data, he knew that the average wage for those who perform
household tasks, such as “painters, child care workers, waiters and waitresses, private household
cooks, laundry and dry cleaning workers, maids, housekeeping cleaners, …, auditing clerks, [and]
taxi drivers and chauffeurs[,]” was $14.99 per hour. He determined that the tasks plaintiff reported
Lois to have performed, dishes, laundry, and the like, fit into the aforementioned umbrella
5
category. Smith also added a non-wage component, explaining that employing such workers
typically requires a 50% finders’ fee. Smith was mindful that Braceville was a smaller community,
and therefore, he did not consider higher fees in the range of $40 to $65 per hour that residents of
large metropolitan areas pay for cleaning services.
¶ 13 Jurak’s counsel then submitted an offer of proof by further questioning Smith. Smith
clarified that he did not account for plaintiff’s late December 2015 remarriage in calculating lost
household services. Referring to his chart, however, Smith calculated that the damages through
the end of 2015 for the loss of household services were $24,808.
¶ 14 Plaintiff testified that he and Lois were married in 2007, when he was 32 and she was 26.
When plaintiff met Lois, she worked at McDonalds. At McDonalds, Lois had worked her way up
to be a manager. In 2008, Lois began working as a clerk for the Village of Braceville. Lois enjoyed
her job at the village, where she continued to work up until the time of her death.
¶ 15 On cross-examination, plaintiff testified that, after Lois’s death in September 2014, he
remarried in December of 2015. On redirect, over Jurak’s objection, plaintiff further testified that
his second marriage ended in divorce approximately 18 months later. Moreover, following Lois’s
death, he was sad, lonely, and “not good.” By “not good,” he meant that he “wasn’t thinking right”
and he was “all over the place.”
¶ 16 C. Jury Instructions and Verdict
¶ 17 At the jury instruction conference, Jurak did not object to plaintiff’s instruction Nos. 19
and 32. Instruction No. 19 was the standard Illinois Pattern Jury Instructions, Civil, No. 31.04 (rev.
June 18, 2021) (hereinafter IPI Civil) “Measure of Damages—Wrongful Death—Adult
Decedent—Widow and/or Lineal Next of Kin Surviving.” IPI Civil No. 31.04 provides:
6
“If you decide for the plaintiff on the question of liability, you must then fix the
amount of money which will reasonably and fairly compensate the [lineal next of kin, [or]
widow] of the decedent for the pecuniary loss proved by the evidence to have resulted to
the [lineal next of kin] of the decedent. ‘Pecuniary loss’ may include loss of money,
benefits, goods, services, [and] society [and sexual relations].
Where a decedent leaves [lineal next of kin], the law recognizes a presumption that
the [lineal next of kin] have sustained some substantial pecuniary loss by reason of the
death. The weight to be given this presumption is for you to decide from the evidence in
this case.
In determining pecuniary loss, you may consider what the evidence shows
concerning the following:
[1. What (money,) (benefits,) (goods,) (and) (services) the decedent customarily
contributed in the past;]
[2. What (money,) (benefits,) (goods,) (and) (services) the decedent was likely to
have contributed in the future;]
[3. Decedent’s personal expenses (and other deductions);]
[4. What instruction, moral training, and superintendence of education the decedent
might reasonably have been expected to give decedent’s child had decedent lived;]
[5. Decedent’s age;]
[6. Decedent’s health;]
[7. Decedent’s habits of (industry,) (sobriety,) (and) (thrift);]
[8. Decedent’s occupational abilities;]
[9. The grief, sorrow, and mental suffering of [next of kin];]
7
[10. The relationship between [lineal next of kin, e.g. son] and [decedent].]
[11. The marital relationship that existed between [widow/widower] and
[decedent].]
[Widow/widower] is not entitled to damages for loss of [decedent’s] society and
sexual relations after [date of remarriage]” Id.
Applied to the instant case, instruction No. 19 omitted as inapplicable paragraphs 4 (regarding a
decedent’s child) and paragraph 10 (regarding a plaintiff’s lineal, non-spousal relationship to the
decedent). Instruction No. 19 retained the instructions specific to the spousal relationship,
including that the widower is not entitled to damages for the loss of the decedent’s loss of society
and sexual relations after the date of remarriage. The jury was also instructed that “society” was
“the mutual benefits that each family member receives from the other’s continued existence,
including love, affection, care, attention, companionship, comfort, guidance, and protection.” See
IPI Civil No. 31.11.
¶ 18 Instruction No. 32 was IPI Civil No. 45.01B (approved Dec. 8, 2011), titled “Verdict Form
B—Single Plaintiff and Defendant—Contributory Negligence—Less than 50%.” IPI Civil No.
45.01B provides in pertinent part:
“First: Without taking into consideration the question of reduction of damages due
to the negligence of [plaintiff’s name], we find that the total amount of damages suffered
by [plaintiff’s name] as a proximate result of the occurrence in question is ____$, [itemized
as follows:]” Id.
Applied to the instant case, instruction No. 32 combined lost earnings and lost household services
as a single-line item and set forth the other categories of loss as follows:
“Medical and/or Funeral Expenses: $__________.
8
The Value of Earnings and Household Services Lost and the present cash value of
the Earnings and Household Services reasonably certain to be lost in the future:
$____________.
Pain and suffering (Lois): $__________.
Loss of Society for Paul Passafiume: $_________.
The Grief, Sorrow, and Mental Suffering of Paul Passafiume: $_______.
PLAINTIFF’S TOTAL DAMAGES: $________.”
¶ 19 The jury returned a verdict for plaintiff, reducing the judgment 20% to account for Lois’s
contributory negligence. Prior to the reduction, the jury’s breakdown of damages had been as
follows:
“Medical and/or Funeral Expenses: $12,139.34.
The Value of Earnings and Household Services Lost and the present cash value of
the Earnings and Household Services reasonably certain to be lost in the future:
$1,434,025.
Pain and suffering (Lois): $200,000.
Loss of Society for Paul Passafiume: $75,750.
The Grief, Sorrow, and Mental Suffering of Paul Passafiume: $400,000.
PLAINTIFF’S TOTAL DAMAGES: $2,121,914.34.”
¶ 20 D. Jurak’s Posttrial Motion
9
¶ 21 Jurak filed a posttrial motion, seeking a new trial or, in the alternative, a remittitur. Jurak
argued that the trial court’s evidentiary rulings on motion in limine Nos. 20 and 25 2 constituted
reversible error. In Jurak’s view, the court’s error stemmed from its failure to recognize that
household services, performed by a spouse as part of the marital relationship, were an element of
consortium and, as such, were not subject to monetization by an expert and were not to be
considered beyond the date of remarriage. Jurak continued that the remarriage issue, which had
been set forth in motion in limine No. 25, represented “99 percent” of his motion.
¶ 22 Plaintiff responded that Jurak forfeited the remarriage issue because Jurak had consented
to instruction No. 32, the verdict form that set forth lost earnings and lost household services as a
single line item. Plaintiff further urged that the general verdict rule precluded recovery, in that
Jurak cannot establish that the entire $1.4 million award for the combined category was not, in
fact, for lost earnings alone. While the expert testified to $913,881 in lost wages, that number
assumed a retirement age of 67 and did not account for increased hours or a promotion.
¶ 23 Jurak replied that, despite the combined structure of the verdict form, the prejudice was
obvious. The expert testified to only $913,881 in lost wages. Therefore, Jurak believed that it was
clear that the $1.4 million award was an excess verdict, which the jury reached in part due to its
incorrect belief that it could consider evidence of nearly $1 million in lost household services
beyond the date of remarriage. Jurak sought a new trial or, in the alternative, a remittitur and a new
award to include only $913,881 for lost wages and approximately $25,000 for lost household
services prior to the date of remarriage.
2
Posttrial, neither the parties nor the trial court consistently linked their arguments and analysis
back to the identifying motion in limine numbers. We do so for clarity.
10
¶ 24 On May 10, 2022, the trial court denied Jurak’s motion for a new trial on damages or, in
the alternative, remittitur. As to motion in limine No. 20, the court explained that, under its reading
of Pfeifer:
“[H]ousehold services were tangible … and more akin to lost earnings rather than the
other amorphous elements of loss of consortium (loss of society, sexual relations,
companionship). Further, this court [originally] concluded that the report of Dr. Smith
along with his interview of [plaintiff] established a proper foundation for his testimony
placing a monetary value on the household services of Lois. His opinions were in part based
on objective information and statistics all properly disclosed in discovery. His testimony
was subjected to vigorous cross-examination and the jury was free to accept or reject such
testimony. Defendant could have offered expert testimony to rebut Dr. Smith but chose not
to.”
¶ 25 As to motion in limine No. 25, the trial court explained that Jurak did not properly preserve
the remarriage issue because Jurak did not object to plaintiff’s jury instruction No. 19, which
limited damages for loss of society and sexual relations prior to the time of remarriage but did not
limit damages for the loss of services prior to the time of remarriage. Also, Jurak did not object to
plaintiff’s jury instruction No. 32, verdict form B, which placed lost household services and as lost
earnings on the same line but placed loss of society on a different line.
¶ 26 This timely appeal followed.
¶ 27 II. ANALYSIS
¶ 28 On appeal, Jurak again argues that the trial court’s evidentiary rulings on motion in limine
Nos. 20 and 25 constituted reversible error. Ordinarily, evidentiary decisions are reviewed for an
abuse of discretion. People v. Drum, 321 Ill. App. 3d 1005, 1009 (2001). A trial court abuses its
11
discretion when its decision is arbitrary, fanciful, or unreasonable. People v. Patterson, 2014 IL
115102, ¶ 114. However, this case also involves a legal question—whether the trial court properly
understood a statutory wrongful death action to allow for a plaintiff to recover for the loss of
material services independent of any recovery for loss of the marital relationship—which we
review de novo. See Drum, 321 Ill. App. 3d at 1009.
¶ 29 Specifically, Jurak argues that a loss of consortium includes material services; material
services are inseparable from other elements of consortium; as part of the consortium, material
services share the same elusive traits as other consortium elements that render expert, fair-market
valuation inappropriate; and like any other element of consortium, damages for the loss of material
services terminate upon remarriage. Jurak’s argument fails primarily because he incorrectly
equates a statutory wrongful death action, which plaintiff filed, with a common law loss of
consortium action, which plaintiff did not file.
¶ 30 Before we discuss differences in these causes of action, we must preliminarily address the
trial court’s forfeiture determination. We disagree that Jurak failed to preserve his argument that
the trial court erred in allowing the jury to consider damages for the loss of household services
beyond the date of remarriage. Jurak objected at trial and in a posttrial motion. See Simmons v.
Garces, 198 Ill. 2d 541, 569 (2002) (when the court denies a motion in limine, the party must make
an objection at trial to preserve the issue on appeal); 735 ILCS 5/2-1202(e) (West 2014) (following
a civil jury trial, any party who fails to seek a new trial in his or her posttrial motion waives the
right to apply for a new trial). Expecting Jurak to offer as an alternative to jury instruction No.
19—which specified that damages for loss of society and sexual relations ended upon
remarriage—an instruction that damages for loss of society, sexual relations, and household
services end upon remarriage places too great a burden on Jurak as a litigant and makes little sense
12
in the context of this case. Jurak already argued in limine and objected at trial that evidence
concerning damages for lost household services should not extend beyond remarriage. The court
had made its decision, prior to the instruction conference, that damages for loss of household
services did not end upon remarriage. We also disagree that Jurak’s failure to offer an alternative
to instruction No. 32, verdict form B, resulted in forfeiture of the material services and remarriage
issues. Placing lost earnings and lost household services on the same line merely made it more
difficult to discern prejudice resulting from the admission of the evidence pertaining to household
services. However, as we determine that the trial court did not err in admitting the evidence, we
need not address prejudice.
¶ 31 A. History of Recovery for the Loss of Material Services
¶ 32 Historically, both statutory wrongful death actions and common law loss of consortium
actions allowed recovery for the loss of a material services formerly performed by the decedent
spouse. However, statutory wrongful death actions allowed for damages beyond the date of a
plaintiff’s remarriage whereas common law loss of consortium actions did not. In 1982, the
supreme court held that a plaintiff was permitted to seek damages for loss of consortium within a
statutory wrongful death action. See Elliott, 92 Ill. 2d at 541. Remarriage was not an issue in
Elliott. Since Elliott, four key appellate cases—Carter (Fourth District), Dotson I and Dotson II
(First District), and Pfeifer (Second District)—have addressed new challenges associated with the
admission of evidence concerning material services and the ability to recover for the loss of
material services beyond the date of a plaintiff’s remarriage. We address these cases to the extent
they inform the premises underlying our analysis.
¶ 33 1. Pre-Elliott Cases Under the Wrongful Death Act: Watson
13
¶ 34 We first consider pre-Elliott actions brought under the Wrongful Death Act. Section 2(a)
of the Wrongful Death Act, which in pertinent part has remained constant since before Elliott,
provides:
“Every such action shall be brought by and in the names of the personal representatives of
such deceased person, and, except as otherwise hereinafter provided, the amount recovered
in every such action shall be for the exclusive benefit of the surviving spouse and next of
kin of such deceased person. In every such action the jury may give such damages as they
shall deem a fair and just compensation with reference to the pecuniary injuries resulting
from such death ….” (Emphasis added.) 740 ILCS 180/2(a) (West 2014).
See also Elliott, 92 Ill. 2d at 534 (citing Ill. Rev. Stat. 1975, ch. 70, ¶ 2).
¶ 35 A growing body of case law has addressed what constitutes a pecuniary injury under the
Wrongful Death Act. A decedent’s lineal next of kin and spouse are presumed to have suffered
pecuniary loss upon the decedent’s wrongful death. Hall v. Gillins, 13 Ill. 2d 26, 31 (1958). The
loss of material services formerly performed by the decedent for her lineal next of kin and spouse
has long been recoverable as a pecuniary loss in wrongful death actions. See Dodson v. Richter,
34 Ill. App. 2d 22, 24 (1962) (the decedent was a wife and mother of teenage and adult children
who performed work in and about the family home—including washing, gardening, cooking,
making clothing, tending livestock, and helping the husband with his bookkeeping—and the loss
of these services were recoverable as a pecuniary loss); McFarlane v. Chicago City Ry. Co., 288
Ill. 476 (1919); see also IPI Civil No. 31.04. The remarriage of the plaintiff, or the possibility
thereof, does not affect damages recoverable for the wrongful death of the deceased spouse.
Watson v. Fischbach, 54 Ill. 2d 498, 500 (1973). The rationale is that a defendant should not be
permitted to introduce evidence, for the purpose of mitigating damages, that shows the plaintiff
14
has received a benefit incident to the complained-of injury from a collateral independent source.
McCullough v. McTavish, 62 Ill. App. 3d 1041, 1048 (1978).
¶ 36 2. Pre-Elliott Cases in Common Law for Loss of Consortium: Dini
¶ 37 We next consider pre-Elliott actions in common law for loss of consortium. Unlike a
wrongful-death action, which may be filed by a lineal next of kin or a spouse, a loss-of-consortium
action can only be filed by a spouse. Black’s Law Dictionary has defined consortium as a
“ ‘conjugal fellowship’ ” between husband and wife and the right of each to “ ‘the company,
society, co-operation, affection, and aid of the other in every conjugal relation.’ ” Pfeifer, 253 Ill.
App. 3d at 1028 (quoting Black’s Law Dictionary 280 (5th ed. 1979)). Black’s Law Dictionary
defines the loss of consortium as “ ‘loss of society, affection, assistance, and conjugal fellowship,
and includes the loss or impairment of sexual relations.’ ” Id. (quoting Black’s Law Dictionary
280 (5th ed. 1979). Merriam-Webster defines conjugal as “of or relating to the married state or to
married persons and their relations.” Merriam-Webster Online Dictionary, https://www.merriam-
webster.com/dictionary/conjugal (last visited May 2, 2023) [https://perma.cc/YFG9-E8AU].
Consortium is unique to the marriage partner. Mitchell v. White Motor Co., 58 Ill. 2d 159, 162
(1974). The elements of loss of consortium have been described as “indefinitely measured
damages.” Coulter v. Renshaw, 94 Ill. App. 3d 93, 96-97 (1981).
¶ 38 Despite the amorphous and highly personal nature of consortium, there is support in the
case law for the inclusion of material services, i.e., household services or chores, as an element of
loss of consortium. In Dini, the supreme court recounted the history of the common law action for
loss of consortium in the context of deciding, for the first time, that the action was not exclusive
to husbands. Dini v. Naiditch, 20 Ill. 2d 406 (1960). Prior to Dini, only husbands could file an
action for loss of consortium: “Since the husband was entitled to his wife’s services in the home,
15
as he was to those of any servant in his employ, if he lost those services through the acts of another,
that person had to respond in damages.” Id. at 422. The Dini court determined that, as a wife is no
longer her husband’s chattel, the law must accordingly change to recognize that “a husband’s right
to the conjugal society of his wife is no greater than hers, [and] an invasion of the wife’s conjugal
interests merits the same protection of the law as an invasion of the husband’s conjugal interests.”
Id. at 429-30.
¶ 39 In defending its position, the Dini court addressed the concern of double recovery.
Id. at
426-27. The Dini court recognized that granting the wife a cause of action for loss of consortium
may result in a double recovery for the same injury if, for example, the husband sought recovery
in an action for his diminished ability to support his family. Id. at 426. It responded with language
that would be cited for decades to come: “This argument emphasizes only one element of
consortium—the loss of support. Consortium, however, includes, in addition to material services,
elements of companionship, felicity[,] and sexual intercourse, all welded into a conceptualistic
unity.” (Emphasis added.) Id. at 427. It continued that any conceivable double recovery for the
loss of support can be obviated by deducting from the computation of damages in the consortium
action any compensation for the loss of support in the other action. Id.
¶ 40 The Dini court also recognized the concern of its opponents that, while an action for loss
of consortium is grounded in the husband’s historic right to the services of his wife, wives have
not, historically, had a corresponding right to the services of their husbands. Id. at 427-28. It
responded that, if the wife’s action was to be historically grounded in sentimental services only,
then so be it—other causes of action, such as alienation of affection, also allow damages for
sentimental services. Id. at 428. It continued, in another oft-cited proposition, that the contrary
position “gratuitously assumes that the concept of consortium is capable of dismemberment into
16
material services and sentimental services—which is but a theoretician’s boast.” (Emphasis
added.) Id. at 427-28.
¶ 41 Numerous courts have relied on Dini’s language that a common law action for loss of
consortium includes the loss of material services. See, e.g., Blagg v. Illinois F.W.D. Truck &
Equipment Co., 143 Ill. 2d 188, 195 (1991) (citing Dini’s language without discussion or direct
application); Manders v. Pulice, 102 Ill. App. 2d 468, 472 (1968). However, this language has
problematic underpinnings. As recognized by the court in Pfeifer, the Dini court was not asked to
decide whether the loss of financial support or material services were components of consortium.
Pfeifer, 253 Ill. App. 3d at 1030-31. As the Pfeifer court held and as both parties accept in the
instant case, the loss of financial support falls squarely outside a consortium claim. Id. at 1031.
The loss of financial support is not an amorphous, highly individualized claim but a tangible and
ascertainable pecuniary damage classically sought in a wrongful-death suit. Id. at 1030. The
problem with the Dini quote is that, in placing the arguably more personalized “material services”
within the consortium claim, it equated the loss of material services with the loss of financial
support—a loss which both parties agree is not a component of the consortium damages.
¶ 42 In addition, numerous courts have relied upon Dini’s language that the concept of
consortium is not capable of dismemberment into its material and sentimental components. See,
e.g., Dotson II, 199 Ill. App. 3d at 529. The Dini dissent observed certain inconsistencies in the
majority’s position, including that, on the one hand, the majority discounted the risk of double
recovery by noting that a court could deduct from the consortium claim damages for components
of consortium that had already been accounted for in other causes of action and, on the other hand,
cautioned that the components of consortium could not be separated. Dini, 20 Ill. 2d at 434
(Schaefer, C.J., dissenting). It would seem to us that, by saying that it is impossible to separate the
17
elements of a loss of consortium claim, we are also saying something about those elements—that
they are amorphous. In contrast, the lost services that have classically been pursued in statutory
wrongful death actions—mending clothes, tending livestock—appear to us to be rather concrete,
and, as the trial court found, are amenable to economic valuation in a manner that the highly
personalized elements of consortium are not.
¶ 43 3. The Inclusion of Consortium Damages
Within a Statutory Wrongful Death Action: Elliott
¶ 44 We now turn to Elliott, where our supreme court held that a plaintiff was permitted to seek
damages for loss of consortium within a statutory wrongful death action and, in so doing, brought
about changes to the wrongful-death IPI instructions. Elliott, 92 Ill. 2d at 540-41. In Elliott, the
plaintiff brought a statutory wrongful death action after her husband was killed in a car accident.
Id. at 533. During the jury instruction conference, the defendants proposed a modified version of
Illinois Pattern Jury Instructions, Civil, No. 31.07 (2d ed. 1971) (hereinafter IPI Civil 2d No.
31.07), which read: “In determining pecuniary injuries, you may not consider … the loss of [the]
decedent’s society by the widow and next of kin.” (Emphasis in original and internal quotation
marks omitted.) Elliott, 92 Ill. 2d at 533. The trial court gave the instruction over the plaintiff’s
objection. Id. The jury awarded $4500 in relation to the wrongful death action, which was the
stipulated value of the husband’s car. Id. The plaintiff appealed, arguing, inter alia, that the trial
court erred in refusing to instruct the jury on the plaintiff’s loss of consortium. Id. at 534.
¶ 45 The supreme court agreed.
Id. at 540-41. Because its holding represents a critical turning
point in the case law, and because our reading of Elliott differs from that of the Dotson courts’, we
quote extended portions of the Elliott analysis:
18
“[T]he question with which we are faced is whether loss of consortium is compensable as
a ‘pecuniary injur[y]’ under the Wrongful Death Act.
[Plaintiff] and defendants agree that consortium is unique to a marriage partner
[citation]. It includes society, guidance, companionship, felicity, and sexual relations.
[Citations.]
Hall v. Gillins [13 Ill. 2d 26 (1958)] and Knierim v. Izzo [
22 Ill. 2d 73 (1961)],
where this court previously examined common law actions brought to recover for loss
involving destruction of the family unit, are particularly helpful. The court reasoned in both
of those decisions that since the remedy sought in each case was not significantly different
from the statutory remedy available under the Wrongful Death Act, which allows
compensation for ‘pecuniary injuries,’ a common law action in tort would not be
recognized.” (Emphasis added.) Id. at 534-35.
Further,
“In Knierim[, 22 Ill. 2d at 82-83], the court relied upon Hall in finding ‘that the
differences between an action for loss of consortium resulting from the death of a husband
and an action for pecuniary loss under the Wrongful Death Act are not sufficiently
significant to warrant us recognizing the action for loss of consortium as an additional
remedy available to the widow.’
In addressing the loss of consortium issue in Knierim the court reiterated our words
in Hall that ‘… [t]he term “pecuniary injuries” has received an interpretation that is broad
enough to include most of the items of damage that are claimed by the plaintiffs in this
case.’ [Citation.] While neither Knierim nor Hall explicitly held that loss of consortium
was to be considered by the jury in deciding what the appropriate amount of damages was,
19
it is apparent that the court denied the common law counts in both actions because the
remedy available in the preemptive wrongful death statute allowed compensation for the
injuries alleged.” (Emphases added and internal quotation marks omitted.) Id. at 536.
Finally,
“It is true that damages for loss of consortium are not capable of being given the
detailed in-depth analysis that an expert can be called upon to testify about in calculating a
decedent’s professional worth where future earnings of an individual employed in a
particular field can be measured with precision and particularity. Just the same the damages
for loss of a husband’s society, companionship and sexual relations are not immeasurable.
All of the elements that comprise what is considered to be loss of consortium may not be
the most tangible items, but a jury is capable of putting a monetary worth on them.
Therefore, to be consistent with the broad interpretation of ‘pecuniary injuries’ under the
Wrongful Death Act [citation] we find loss of consortium to be included.
The purpose of the Wrongful Death Act is to compensate the surviving spouse and
next of kin or the pecuniary losses sustained due to the decedent’s death. [Citations.] It is
intended to provide the surviving spouse the benefits that would have been received from
the continued life of the decedent. The jury should have been instructed that the value of
the decedent’s companionship and conjugal relations could be considered in computing the
damages to be recovered.” (Emphasis added.) Id. at 539-40.
¶ 46 The Elliott court then specifically addressed the changes that should be made to the
standard IPI instructions applicable in statutory wrongful death actions:
“In view of our holding it is clear that the jury was not properly instructed on the
measure of damages. The language of IPI Civil [(2d)] No. 31.07 that indicates that in
20
determining ‘pecuniary injuries’ the jury may not consider ‘[t]he loss of decedent’s society
by the widow and next of kin’ is no longer valid. In determining the pecuniary value of a
spouse under IPI Civil [(2d)] No. 31.04 the society, companionship and conjugal
relationship that constitute loss of consortium are factors that the jury may consider.” Id.
at 541.
¶ 47 4. Post-Elliott: Appellate Decisions
¶ 48 Since Elliott, four appellate court decisions have addressed challenges arising from the
inclusion of consortium damages within a statutory wrongful death claim. These are Carter,
Dotson I, Dotson II, and Pfeifer.
¶ 49 a. Carter
¶ 50 In Carter, the appellate court affirmed the manner in which the trial court handled the
plaintiff’s remarriage when the plaintiff sought consortium damages within his statutory wrongful
death action. Carter, 130 Ill. App. 3d at 435. The trial court had given the plaintiff two options.
Id. Under the first option, the plaintiff would be permitted to seek damages for loss of consortium
but he would also be required to inform the jury of his remarriage. Id. The jury would receive
instructions that the loss of consortium damages would be calculated only to the date of remarriage
but that remarriage would not affect any other element of damages or liability. Id. Under the second
option, the plaintiff could withhold the fact of his remarriage from the jury, but he would not be
permitted to seek damages for loss of consortium. Id. The plaintiff elected the second option and,
in choosing “not to include loss of consortium as an element of damage[,] [he] thus insured that
the fact of his remarriage would not be brought to the attention of the jury.” Id.
¶ 51 The plaintiff appealed, arguing that, under Watson and Elliott, the trial court should have
permitted him to seek damages for loss of consortium and instruct the jury that his remarriage was
21
irrelevant to the determination of damages. Id. at 436. The plaintiff correctly noted that, per
Watson, remarriage was irrelevant to a determination of damages in a wrongful death suit. Id. The
plaintiff then appeared to argue that, because Elliott did not purport to limit Watson, then, when
Elliott allowed damages for loss of consortium to be brought within a wrongful death suit, those
consortium damages were subject to the same rules as other damage elements of the wrongful
death suit—i.e., they were not subject to limitation based on remarriage—and were no longer
subject to the rule governing common law action for loss of consortium that damages be calculated
only to the date of remarriage. Id.
¶ 52 The appellate court disagreed.
Id. In a brief analysis, it noted that when, as in Elliott, the
supreme court announces a new principle of law, it overrules, sub silentio, all prior conflicting
authority. Id. The appellate court continued that, as to the damage element of consortium only, a
plaintiff’s remarriage will affect the jury’s determination of damages within the wrongful death
claim. Id. The appellate court rejected the plaintiff’s argument that, because consortium with the
deceased spouse may have been of a different quality from that with the present spouse, a different
result was warranted. Id. Thus, it concluded, the trial court’s decision to give the plaintiff two
options—seek consortium damages but disclose the circumstance of remarriage to the jury, or
forgo consortium damages and keep the circumstance of remarriage from the jury—was “sensible
and logical.” Id.
¶ 53 b. Dotson I
¶ 54 In Dotson I, the appellate court interpreted Elliott as mandating that material services are
now recoverable in wrongful death actions only as part of a loss of consortium claim. Dotson I,
157 Ill. App. 3d at 1044. In Dotson I, the plaintiff’s wife was killed by an explosion following a
repair to a clothes dryer performed by the defendant’s employee. Id. at 1039. The plaintiff brought
22
a statutory wrongful death action. Id. at 1040. He wished to keep the fact of his remarriage from
the jury, so he withdrew his request for consortium damages. Id. at 1043. Nevertheless, the trial
court allowed the plaintiff to testify to the quality of his marriage to the decedent for the purpose
of showing what material services were lost. Id. The jury awarded $1.7 million in the wrongful
death suit. Id. at 1040. The defendant appealed, arguing that the trial court erred in allowing the
plaintiff to testify to the quality of his marriage; the testimony was ostensibly offered to show proof
of the decedent’s material services but was in reality offered to show a loss of society. Id. at 1043.
¶ 55 The Dotson I court agreed with the defendant, and it went a step further.
Id. It wrote:
“[E]ven if the quality of [plaintiff’s marriage to decedent] was relevant to the claim for
loss of [the decedent’s] material services, such evidence was precluded by [plaintiff’s]
withdrawal of his loss of consortium claim. Contrary to the understanding of the trial court,
a loss of consortium claim includes a claim for loss of material services.” Id.
¶ 56 To explain its ruling, the Dotson I court recounted the developing law: (1) claims for a
spouse’s services in the home have traditionally been recoverable in wrongful death actions
(McFarlane); (2) evidence of remarriage was irrelevant to a determination of damages in wrongful
death actions (Watson); (3) Elliott allowed plaintiffs to seek damages for loss of consortium within
wrongful death actions (Elliott); and (4) Carter held that Elliott implicitly overruled Watson in
part, in that, moving forward, the circumstance of remarriage was relevant to a determination of
damages for loss of consortium within a wrongful death action. Id. at 1043-44.
¶ 57 From this, the Dotson I court inferred:
“Although neither Elliott nor Carter explicitly hold that a claim for loss of a
spouse’s material services is henceforth incorporated into the now recoverable claim for
loss of consortium in a wrongful death action, they must be construed to such effect. While
23
Elliott did not mention the material services component of the loss of consortium claim, it
affirmed an appellate court decision which held that the trial court should have given the
jury an instruction on loss of consortium, ‘i.e., lost services, society, companionship and
sex.’ (Emphasis added.) (Elliott v. Willis[, 89 Ill. App. 3d 1144, 1145 (1980)].) Moreover,
the supreme court noted that consortium ‘includes society, guidance, companionship,
felicity and sexual relations. (Elliott[, 92 Ill. 2d [at] 535], citing Dini[,
20 Ill. 2d 406].) That
case, in turn, observed that consortium includes ‘in addition to material services, …
companionship, felicity and sexual intercourse, all welded into a conceptualistic unity’ and
that consortium was incapable of separation into the ‘material and sentimental services.’
(Emphasis added.) [Dini,
20 Ill. 2d at 427-28].
From these cases, we conclude that material services have always been a
component of a claim for loss of consortium and that the allowance of their recovery in
wrongful death actions prior to Elliott was a necessary departure from this general rule. We
further conclude that Elliott mandates a finding that material services are now recoverable
in wrongful death actions only as part of a loss of consortium claim. As such, the trial court
erred when it allowed evidence of the quality of the [plaintiff’s] marriage as evidence that
[the decedent’s] services to [the plaintiff] would have continued in the future. Because [the
plaintiff] withdrew his claim for loss of consortium, which under Elliott included his claim
for loss of material services, this evidence was irrelevant to the issue of the amount of
damages to which [the plaintiff] was entitled. This error requires a reversal of the
$1,700,000 award to the estate of [the decedent] and a new trial.” (Emphases added and in
original.) Id. at 1044.
24
¶ 58 The Dotson I court added: “Having concluded that [the plaintiff] could not separate a claim
for loss of material services from a claim for loss of consortium, we also conclude that to the extent
the trial court allowed [the plaintiff] to advance a claim for such services it should have allowed
evidence of his remarriage.” Id. at 1045.
¶ 59 c. Dotson II
¶ 60 The Dotson II court addressed the plaintiff’s appeal from the second trial. This time, the
plaintiff argued that the trial court erred in instructing the jury to limit damages for lost material
services to the loss sustained from the time of decedent’s death to the time of the plaintiff’s
remarriage. Dotson II, 199 Ill. App. 3d at 527. The appellate court held that the determination that
material services were recoverable only as part of a loss of consortium claim was law of the case.
Id. at 528. Further, the Dotson II court defended the Dotson I rationale by noting that
(1) historically, the common law recognized a loss of consortium action in the husband for the loss
of his wife’s services; (2) the Dini court held that material services were an element of loss of
consortium; and (3) the Dini court also held that the elements of consortium are welded into an
inseparable, conceptualistic unity. Id. at 529-31. Because of this, the court concluded, “after
Elliott[,] remarriage limits a claim for material services as much as it limits any other element of
consortium.” Id. at 531.
¶ 61 Though Dotson II may have initially appeared to retreat from Dotson I when it referred to
its earlier holding as the law of the case (id. at 528), it later went one step further than its initial
determination that a plaintiff could pursue a claim for material services so long as he disclosed the
fact of his remarriage (Dotson I, 157 Ill. App. 3d at 1045). Dotson II ultimately concluded that a
plaintiff would be precluded from seeking damages for the loss of material services beyond the
date of remarriage. Dotson II, 199 Ill. App. 3d at 531.
25
¶ 62 d. Pfeifer
¶ 63 In Pfeifer, the trial court limited damages to the date of remarriage for the loss of the
decedent spouse’s financial support within a wrongful death action. 253 Ill. App. 3d at 1026. The
appellate court reversed, explaining that Watson controlled over Dotson I and Dotson II. Id. at
1026-31. In particular, the appellate court stressed that the loss of financial support and the loss of
consortium are distinct and independent components of the pecuniary damages recoverable under
the Wrongful Death Act. Id. at 1031. Watson had held that remarriage does not affect damages
recoverable in a wrongful death action, and this applies equally to the loss of financial support. Id.
at 1027. Further, the defendant “cannot escape application of the [Watson] rule by attempting to
recast financial support as either a type of material service or as an element of loss of consortium
separate from but similar to the ‘material services’ which were at issue in Dotson.” Id. at 1027-28.
¶ 64 The Pfeifer court recognized the language in Dini placing material services in the
consortium basket and appearing to equate material services with loss of financial support. Id. at
1030-31 (“ ‘[t]his argument emphasizes only one element of consortium—the loss of support’ ”
(quoting Dini, 20 Ill. 2d at 427)). The Pfeifer court reasoned, however, that the above-quoted
comment appeared in a dicta portion of the Dini decision, the main point of which had been merely
to establish that a wife’s claim to loss of consortium is equal to that of a husband’s. Id. at 1031.
The Pfeifer court concluded that, if the Dini court had been squarely faced with the question of
whether financial support was an element of consortium, it would not have made the comment. Id.
at 1031.
¶ 65 In support of its holding, the Pfeifer court synthesized the case law pertaining to the
definitions of consortium and material services within a consortium claim. Id. at 1029-30. It
contrasted consortium and material services within a consortium claim with financial support:
26
“[T]he Dotson court, which held that material services were a component of a claim for
loss of consortium, perceived such services as unique to a marital relationship ….
The concept of consortium, as it emerges from the cases, consists primarily and
essentially of intangible elements which are unique, and very personal, to any given
marriage. The loss of consortium reflects the loss of personal benefits and satisfactions the
surviving spouse enjoyed as a result of a highly individualized relationship with a particular
person. That relationship and those benefits cannot be duplicated. As for material services,
we note first that the courts speak of a wife’s ‘services in the home,’ services ‘as [the
spouse’s] wife,’ and ‘personal services.’ The courts’ discussions do not include, even by
implication, the concept of financial support. Too, while some material services are clearly
more tangible in nature than such things as affection and companionship, they are also
highly personal to, and generally flow from, the particular relationship between specific
spouses. As such, they are properly part of consortium.
In contrast, financial support lost due to the wrongful death of a spouse is totally
tangible. Financial support is wholly unlike the elusive and highly personal characteristics
of consortium. It does not flow from, is not unique to, and does not depend upon the
relationship between particular spouses.” (Emphasis added.) Id.
¶ 66 The Pfeifer court readily distinguished the damages at issue in the case before it—lost
financial support—with those at issue in Dotson I and Dotson II—lost material services. Unlike
us, they were not called upon to agree or disagree with the inferences made by the Dotson courts.
Nevertheless, we agree with Pfeifer that Watson continues to be good law and the general rule in
statutory wrongful death actions. With the exception of damages for loss of consortium within a
wrongful death action, a plaintiff’s remarriage may not affect a jury’s determination of damages
27
in a wrongful death action. We also take away that the concept of consortium “consists primarily
and essentially of intangible elements which are unique, and very personal, to any given marriage.”
Id. at 1029.
¶ 67 B. Application to the Instant Case
¶ 68 The aforementioned cases demonstrate that financial support and material services have,
historically, been recoverable under a statutory wrongful death action. On a parallel track, common
law has, historically, recognized a cause of action for loss of consortium, which also has been said
to include material services. The supreme court in Elliott allowed for a plaintiff to seek damages
for loss of consortium within a statutory wrongful death action. However, as Elliott was not a
remarriage case, it did not instruct upon the consequences of remarriage to a jury’s determination
of damages when a plaintiff chooses to seek damages for loss of consortium (in which remarriage
is a guiding consideration) within a statutory wrongful death action (in which remarriage may not
be considered).
¶ 69 For the reasons that follow, we determine that, when a plaintiff chooses to seek damages
for loss of consortium within a statutory wrongful death action, the classic elements of a statutory
wrongful death action—loss of financial support and loss of material services—are preserved and
remain subject to the supreme court’s holding that remarriage must not affect the jury’s
determination of damages. See Watson, 54 Ill. 2d at 500. The remaining elements of a loss of
consortium claim, including “society, guidance, companionship, felicity and sexual relations,”
remain subject to the Carter rule of termination upon remarriage. See Elliott, 92 Ill. 2d 535
(describing consortium); see also Carter, 130 Ill. App. 3d at 436 (the remarriage rule as applied to
damages for loss of consortium).
28
¶ 70 As stated in Pfeifer, the concept of consortium “consists primarily and essentially of
intangible elements which are unique, and very personal, to any given marriage.” Pfeifer, 253 Ill.
App. 3d at 1030. Elliott named these elements as “society, guidance, companionship, felicity and
sexual relations,” and “society, companionship[,] and [the] conjugal relationship.” Elliott, 92 Ill.
2d at 535, 541. These core components of consortium are what had not been recoverable in
statutory wrongful death actions prior to Elliott, and, with their addition, the common law action
for loss of consortium was no longer necessary as a separate cause of action in the same suit.
¶ 71 The parties focus on the fact that, in instruction No. 32 (IPI Civil No. 45.01B), plaintiff
placed lost earnings and lost household services on the same line and Jurak did not object. Equally
important, however, is that IPI Civil No. 31.04 places the loss of services and the loss of the marital
relationship on separate lines, a formulation that followed from the supreme court’s analysis in
Elliott. Elliott, 92 Ill. 2d at 541. Thus, Elliott offers additional support for our holding in that
services, a traditional element of a statutory wrongful death action, are distinct from the remaining
elements of consortium. This defeats a critical premise in the Dotson decisions.
¶ 72 The Dotson decisions hang on the support-and-material-services language in Dini, which,
as Pfeifer noted, was set forth in dicta, and on the idea that the consortium is a conceptualistic
unity which cannot ever be broken into its various components. However, as noted, the support-
and-material-services language in Dini has problematic underpinnings. Moreover, the
conceptualistic-unity language in Dini was not iron clad.
¶ 73 To the contrary, the Dini court forecast that, when brought in conjunction with another
cause of action, a trial court may need to deduct damages from the otherwise unbreakable
conceptualistic unity of consortium to avoid double recovery. Dini, 20 Ill. 2d at 427. Here, plaintiff
has not brought a consortium action in addition to a wrongful death action, but he seeks damages
29
for consortium within a wrongful death action. As Elliott instructs, if one cause of action versus
the other—a statutory wrongful death action versus a common law loss of consortium—must bend
from its historical pure form, it is the common law loss of consortium action. This must be the case
where, as here, the plaintiff filed a statutory wrongful death action, not a common law loss of
consortium action. In fact, in Elliott, the supreme court favorably recounted that, when the plaintiff
in Knierim chose to pursue pecuniary losses under the Wrongful Death Act, the common law action
for loss of consortium “would not be recognized.” Elliott, 92 Ill. 2d at 535-36.
¶ 74 Indeed, the Dotson courts’ logic that, because the elements of consortium exist in an
unbreakable unity, a plaintiff in a statutory wrongful death suit can only seek damages for loss of
material services as part of a loss of consortium claim, would make more sense conceptually if
Elliott had held that the statutory wrongful death action would be subsumed within a consortium
claim, not the other way around.
¶ 75 Thus, we decline to follow the Dotson decisions for at least two reasons: (1) Dotson
interprets Elliott to have limited the relief available under the Wrongful Death Act, when, in our
view, Elliott (which was not a remarriage case) intended to expand the relief available under the
Wrongful Death Act while eliminating the need for a separate, common law loss of consortium
action; (2) Dotson potentially eliminates, or at least changes the character of, previously available
relief for one class of litigants (a plaintiff spouse in a wrongful death action) but not for another
class of litigants (a plaintiff lineal next-of-kin in a wrongful death action). For example, under
Dotson, a plaintiff spouse cannot seek damages for lost material services outside his request for
consortium damages. In attempting to prove or describe the lost material services, the plaintiff
spouse would be relegated to highly personal, non-market valuations of the same. See Elliott, 92
Ill. 2d at 540. However, a plaintiff child or parent would be able to seek damages for lost material
30
services and submit market-value evidence of the same. Similarly, a plaintiff spouse who does not
wish to pursue damages for loss of the marital relationship, and in exchange keep his remarriage
from the jury, cannot seek damages for lost material services, even though lost material services
have always been recoverable under a statutory wrongful death action. However, a plaintiff child
or parent, for whom loss of the marital relationship is inapplicable, could seek damages for lost
material services. In this way, material services are not unique to the marital relationship. Cf.
Mitchell, 58 Ill. 2d at 162 (consortium is unique to the marriage partner).
¶ 76 Our holding is consistent with Williams v. BNSF Ry. Co.,
2015 IL App (1st) 121901-B,
¶ 49. Williams provides guidance in that it, too, examines a plaintiff’s ability to recover consortium
damages within a statutory cause of action—there, the Federal Employers’ Liability Act (FELA)
(45 U.S.C. § 51 (2006)). Williams instructs that a plaintiff in a FELA action may not recover
consortium damages but may recover for lost household services, the latter having “nothing to do
with [the plaintiff’s] relationship with his wife and the effect [the plaintiff’s] injuries had on that
relationship.” Williams, 2015 IL App (1st) 121901-B, ¶ 49. Thus, Williams did not agree with the
Dotson rationale that a claim of damages for lost material services was an indivisible part of a
claim for loss of consortium such that, if damages for loss of consortium were not sought or could
not be sought, neither could damages for lost material services.
¶ 77 In sum, we reject Jurak’s argument that damages for loss of material services must end
upon remarriage. Aside from the Dotson cases, which are problematic for the reasons stated, Jurak
relies primarily on case law concerning the common law action for loss of consortium. See, e.g.,
Blagg, 143 Ill. 2d at 195; Dini,
20 Ill. 2d 406; Manders,
102 Ill. App. 2d 468. The instant plaintiff
did not file a common law action for loss of consortium. He filed a statutory cause of action for
wrongful death. The case law addressing that cause of action—primarily Watson and Elliott, both
31
supreme court cases—control. Because we have held that the trial court properly allowed plaintiff
to recover for loss of material services independent of his recovery for loss of consortium, i.e., loss
of the marital relationship, we need not address Jurak’s argument that, as a part of the consortium,
material services share the same elusive traits as other consortium elements that render expert,
market valuation inappropriate.
¶ 78 As a final matter, to the extent that Jurak continues to argue that Smith’s testimony
concerning household services was improper even outside the consortium context, we disagree.
“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Ill.
R. Evid. 702 (eff. Jan. 1, 2011). To be admissible, expert testimony must be supported by an
adequate foundation, showing that the facts or data relied upon by the expert are of a type relied
upon by experts in the relevant field. Ill. R. Evid. 703 (eff. Jan. 1, 2011); Wilson v. Clark, 84 Ill.
2d 186, 193-96 (1981). In this case, as the trial court stated: “[Smith’s] opinions were in part based
on objective information and statistics all properly disclosed in discovery. His testimony was
subjected to vigorous cross-examination and the jury was free to accept or reject such testimony.
Defendant could have offered expert testimony to rebut Dr. Smith but chose not to.” There is no
error here.
¶ 79 III. CONCLUSION
¶ 80 The judgment of the circuit court of Grundy County is affirmed.
¶ 81 Affirmed.
32
Passafiume v. Jurak, 2023 IL App (3d) 220232
Decision Under Review: Appeal from the Circuit Court of Grundy County, No. 17-L-7; the
Hon. Lance R. Peterson, Judge, presiding.
Attorneys Troy A. Lundquist and Stacy K. Shelly, of Langhenry, Gillen,
for Lundquist & Johnson, LLC, of Joliet, and Melinda S. Kollross, of
Appellant: Clausen Miller P.C., of Chicago, for appellants.
Attorneys Robert J. Napleton and David J. Gallagher, of Motherway &
for Napleton, LLP, of Chicago, and Lynn D. Dowd and Jennifer L.
Appellee: Barron, of Law Offices of Lynn D. Dowd, of Naperville, for
appellee.
33
