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Separately Compensable Damages for Emotional Distress in Illinois Tort Cases

Article Authored By: Whitney Barr

Often, those who have sustained an injury can suffer more than just physical harm. Mental pain and suffering in connection with a harm, is a proper element of damages where it is the natural and proximate consequence of the injury. The applicable jury instruction for emotional distress in civil cases can be located in the Illinois Jury Pattern Instructions, Civil 30.05.01 (I.P.I. 30.05.01). It states “Measure of Damages – Emotional Distress – Past and Future. The emotional distress experienced [and reasonably certain to be experienced in the future.]” Illinois precedent indicates that emotional damages are distinct from pain and suffering and can be claimed in addition to those damages as a separate line-item jury instruction. The comment to I.P.I. 30.05.01 cites several cases that support this proposition including Babikian v. Mruz. In that case, the plaintiff endured multiple surgeries and hospitalizations as a result of complications from medical negligence, and subsequently suffered a decline in her mental health. 2011 IL App (1st) 102579. The plaintiff then sought treatment from psychologists and psychiatrists. The First District Appeals Court affirmed the verdict for the plaintiff in a medical malpractice action with separate line items for pain and suffering and emotional distress, explicitly finding that emotional distress damages are available to prevailing plaintiffs in cases involving personal torts such as medical negligence.

The Fourth District Appellate Court has expressed disagreement with the First District. In Marxmiller v. Champaign-Urbana Mass Transit Dist., the court stated it believed emotional distress was encompassed within pain and suffering. 2017 IL App (4th) 160741. However, the court ultimately upheld the jury’s separate award of emotional distress damages in addition to pain and suffering damages, consistent with the prevailing view in Illinois. In some instances, defendants have expressed concern over the risk of an improper duplicative recovery when a separate instruction is given for emotional distress. Illinois courts have widely acknowledged that jurors have the ability to fairly determine what is, and what is not, emotional distress. Where there are distinct emotional and psychological harms apart from pain and suffering, it is presumed the jury will understand the court’s instructions and there will be no duplicative recovery. This was evident in Jefferson v. Mercy Hospital & Medical Center. In that case, the First District Appeals Court found there was strong evidence that the jury did not bestow a double recovery on the plaintiff as the damages awarded for emotional distress were greater than those awarded for pain and suffering. 2018 IL App (1st) 162219.

In 2001, the Second District Appeals Court held in Hiscott v. Peters that expert testimony was required to recover damages for emotional distress. 324 Ill. App. 3d 114, 116, 754 N.E.2d 839, 843 (2001). In that case, the plaintiff was involved in a motor vehicle collision where the jury returned an itemized verdict for past medical expense, past pain and suffering, future pain and suffering, disability, and disfigurement and emotional distress. The appellate court concluded that the plaintiffs failed to support their claim of emotional distress with expert medical proof. That standard has changed. In 2010, the Illinois Supreme Court overturned the Second District, and held that expert testimony is not required to recover damages for emotional distress. Thornton v. Garcini, 237 Ill.2d 100, 928 N.E.2d 804, 809, 340 Ill. Dec. 557, 562 (2010). The Supreme Court held that while expert medical testimony may assist the jury, it is not required to support a claim for emotional distress.

The availability of emotional distress damages for mental pain and suffering in connection with an injury reflects the fundamental premise of tort law: to provide just compensation for any loss or injury proximately caused by the tortfeasor. Illinois courts have drawn a distinction between pain and suffering and emotional distress, and this allows for tort victims to properly recover for their injuries.

About The Author:

Whitney Barr is an attorney at David A. Axelrod & Associates. Whitney graduated from Saint Louis University School of Law in May of 2021 where she was a teaching fellow and member of the SLU National Moot Court Team. Whitney was also a student-attorney in the Human Rights Clinic where she pursued impact litigation. She is licensed to practice in Illinois and Missouri. Whitney is passionate about social justice and maintains a commitment to public service via pro bono work and volunteering.

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