Fully Explore the Facts People, including lawyers, are dismis-


sive of the elderly. There is no question that they are at a higher risk for unfair treatment and discrimination. Thus, when the elderly client comes into the office, how many of us give him short shrift when we learn that the pain and suffering lasted for less than one week and that there are limited economic damages? Our recommendation, and in a broader sense, the antidote to stereo- typical profiling of the client – or any class victimized by discrimination – is to take the time to talk to the potential client. Sit next to the man, not from across your cluttered desk in a position of authority. Make him comfortable, and then listen. While the liability aspect of the case


is, of course, essential, we spend just as much time, and often much more time at that initial meeting, learning about the elderly client’s life and family. Why? First, because it is often cathartic to the griev- ing client. Second, because it may well open up an entirely new damages avenue that we had not thought about. When we did this with the client described above, the result was astounding in court. Our client, a humble, dignified doc-


tor who had compassionately practiced medicine in Maryland for almost 50 years, had been let down by his fellow doctors when they punctured his wife’s pulmonary artery, and then failed to repair it. A physician himself, he knew there had been malpractice, and strug- gled with the decision to see a lawyer. But what really made this case unique at that first meeting was when we focused the client on his early life, his married life, and what his life had been like since his wife died. He described what it was like to wake up in the morning without her next to him; the heaviness in his heart as he moved out of the family house they shared together into a one-bedroom apartment; the sense of helplessness he felt as he went legally blind after his wife’s death and how that so com- pounded his grief because he knew his wife would have been his eyes had she


Summer 2007


still been alive. Had we stopped at the question


“Did your wife work?” Answer: “No,” we would not have been treated to this wonderful story of a life shared – and we would not have thought the case had much value. Those extra questions and a sensitivity to ask and listen, allowed us to present a true life story to a group of nine strangers in such a way that each related to the family, and to the loss, in a very personal way.


There Are Hidden Economic


While the liability aspect of the case is, of course, essential, we spend just as much time, and often much more time at that initial meeting, learning about the elderly client’s life and family.


Damages and Non-Economic Damages When Represent- ing the Elderly


In the case of the injured child who


will require a lifetime of medical care, putting the economic damages number before the jury is relatively simple. A life-care planner and an economist do much of the work. Papers and pencils hopefully come out! While at first blush the death of a seventy-five-year-old hus- band/wife does not seem to offer much in real economic loss, there may well be a big number lurking in the economic damages. Under Maryland wrongful-death law,


the elderly spouse is entitled to recover his pecuniary losses pursuant to Md. Code Ann., Cts. & Jud. Proc. § 3-904. The pattern jury instructions make clear that the economic losses to be considered “in- clude the financial support as well as the replacement value of the services that the decedent furnished or probably could have been expected to furnish.” MCPJI 10:21 (emphasis added). This italicized language is crucial. While it may be true that the widow/widower has little or no economic loss in the traditional sense because the decedent earned no income, carefully ask what is the economic value


Trial Reporter


on which, by reason of their character, no market value can be placed.” Yet they are still recoverable. Do you need an expert to establish


this number? The answer is no, but we highly recommend it, and Maryland courts have allowed the use of experts to put a value on lost household services since Sun Cab Co. v. Walston, 89 A.2d 804 (Md. Ct. App. 1972), aff ’d, Walston v. Sun Cab Co., 298 A.2d 391 (Md. 1973). Various types of experts can be used, and you need to find the one that best suits your case. Did the decedent do all the housework? If so, have you retained someone from a local housekeeping company to discuss the costs to have a house cleaned for many years? Did the decedent do all of the driving? If so, what is the value of the transportation costs that the widow/widower will now incur? Did the decedent pay all of the bills and do the taxes each year? If so, what will an accountant charge to perform these services? The point is that all of these economic damages are recoverable and the true replacement cost may well add up to much higher numbers than either you, or your economist, anticipated. Jurors know what ten dollars an hour buys in the labor market, not much.


of those lost household services in a long marriage where the couple relied upon each other for everything and enjoyed each others’ most caring and compas- sionate assistance. Seen in this light, the economic damages can be significant. As the Court of Special Appeals wrote in Edmonds v. Murphy, 573 A.2d 853 (1977), aff ’d, 601 A.2d 102 (Md. 1992), there are certain lost household services “that are of such a character that they cannot be rendered by hired help and


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