California Changes Law: Pain and Suffering Survives the Deceased

A specter of the deceased’s pain and suffering will soon haunt California defendants.

California law has long been that damages for pain and suffering “die with the plaintiff,” on the rationale that such damages are personal to the individual. Recent legislation signed into law by Governor Newsom on October 5 and effective January 1 changes this, and places California’s treatment of pain and suffering damages more in line with a majority of the nation. This bill, originally introduced by Senator Laird in February 2021, has been amended slightly: pain and suffering damages will be granted a life beyond the deceased for those cases that were granted preference before January 1, 2022, or are filed between January 1, 2022 before January 1, 2026.

One could reasonably anticipate that before this sunset date, the plaintiffs’ bar will introduce further legislation to make the change permanent.

The new law will not only increase available damages in many cases, but will correspondingly make litigation more difficult to settle, and therefore costlier even where there are meritorious defenses.

The bill was required to go through the Assembly Appropriations Committee before making its way to the governor’s desk. This route is usually reserved for bills that will have a fiscal impact on California’s budget. An Assembly report highlighted that some State entities, such as the University of California, CalTrans and Cal Fire, have faced million dollar lawsuits for personal injury, so pain and suffering’s extended life will have a fiscal impact that needed to be considered before passing the bill out of the legislature.

Through the General Fund for tax payers, and more generally through increased defense costs, this may amount to California citizens paying more as these costs are passed on to consumers.

(This is a follow up to the article Pain and suffering may become awardable in California wrongful death cases, from May 20, 2021.)