ABSTRACT: In a move that may further exacerbate the growing “nuclear verdict” issue in Illinois, plaintiffs will now be permitted to seek punitive damages from defendants under the Wrongful Death Act and Survival Act. While this law may be challenged on constitutionality grounds in the near future, we examine the history of this new amendment and its potential impact to businesses in Illinois.

For the first time in its history, Illinois approved an amendment expanding punitive damages recovery to Plaintiffs under the Wrongful Death and Survival Acts. Previously, Illinois courts held that punitive damages rights belonged to the injured person alone and such rights ceased on the death of the injured person. After Illinois Gov. JB Pritzker signed House Bill 219 into law on August 11, 2023, amending 740 ILCS 180/1, 740 ILCS 180/2, and 755 ILCS 5/27-6, Illinois plaintiffs may now seek to recover punitive damages in wrongful death or survival actions.

Although similar legislation had been presented many times previously in prior general assemblies, House Bill 219 was rushed through both Illinois houses, passing within one week of state Rep. Jay Hoffman (D – Swansea) becoming chief sponsor of the bill, reportedly spurred on by recent strong support from the Illinois Trial Lawyers’ Association (ITLA), including from then-president of ITLA Pat Salvi, Jr., who personally argued in favor of House Bill 219 to an Illinois Senate Panel.

Opponents of House Bill 219 have indicated future challenges to the constitutionality of this amendment may likely be raised in the coming months. As it stands now, defendants sued in Illinois may face the prospect of juries awarding higher, more frequent verdicts over $10 million (commonly referred to as a “nuclear verdict”) to include these new damages available. Those juries are now faced with the task of setting a dollar amount on the punitive punishment of a defendant for the death of an injured party, in addition to the compensatory damages for that same injury and death. Comparing punitive damages awarded to a living injured person to those now permitted to be awarded following the death of an injured party, juries may award higher punitive damages for the latter, where juries may be persuaded that punitive punishment should be greater against a party where death results from a defendant’s conduct, compared to the similar conduct resulting in injury but not death.

As many times punitive damages are not covered by any insurance policies, the risk to businesses sued in Illinois courts is now increased in a way that may be challenging to mitigate in advance. This change may also harm small businesses disproportionally, as a punitive damages verdict may have the potential to bankrupt and shut down companies that cannot absorb such a financial loss. As Illinois Rep. Dan Ugaste (R – 65th District) argued in a House Judiciary Committee hearing opposing House Bill 219, entire businesses could be shuttered due to the actions of “one or two bad actors,” potentially punishing employees and investors who had no role in or knowledge of the conduct leading to the lawsuit.

It is important to note however, that Illinois has not changed the standard for pleading punitive damages. Prior to pleading such damages and before a plaintiff would be permitted to ask a jury for punitive damages, Illinois law still requires the plaintiff to seek leave from the Court and demonstrate to the Court that the plaintiff has a “reasonable likelihood of proving facts at trial sufficient to support an award of punitive damages.” As the Illinois Supreme Court has previously held that caps on punitive damages were unconstitutional, House Bill 219 does not contain any such limitations. House Bill 219 also retains the exemptions related to suits against doctors, lawyers, and public entities, under 735 ILCS 5/2-1115, 745 ILCS 10/2-102, and 745 ILCS 10/2-213.

Many observers see this amendment most significantly impacting toxic tort litigation, particularly in cases involving asbestos. In such cases, plaintiffs have alleged in prior punitive damages claims that a particular company or industry knew of the hazards of asbestos but did not provide any warnings and continued to use or manufacture products containing asbestos despite knowing of potential dangers. In Madison County, Illinois, one of the largest dockets in the country for asbestos claims, we are prepared to help clients navigate the local rules of Madison County regarding punitive damages in asbestos cases impacted by this amendment.

Jury verdicts, both in Illinois and across the country, have been notably higher since courtrooms re-opened following the COVID-19 pandemic and during this time of increased economic inflation. As such, it would not be surprising to see an increased number of punitive awards and potentially higher punitive awards. In any case where there is a potential for punitive damages to be sought, particularly in cases where the injured party is deceased or may not survive through trial, businesses sued in Illinois should be aware of the increased risk and new category of damages available created by Illinois’ passage of House Bill 219 amending Illinois’ Wrongful Death Act and Survival Act.