Litigating Wrongful Death Claims Under Wisconsin's Statutory Caps

Wisconsin is one of a handful of states which limits non-economic damages for wrongful death claims. This cause of action in Wisconsin is a creation of statute.^[1] The right to recover for wrongful death is purely statutory, since no such right existed under the common law.^[2] The action may be brought by a personal representative of the deceased, however the non-economic damages are strictly limited to $350,000 for adults and $500,000 for children.^[3] A wrongful death action is designed to compensate the deceased's relatives for the damages they suffer as a result of that death.^[4] While these statutory caps place a clear limit on a family's post-death financial recovery, they effectively shift the primary battleground of high-stakes fatality litigation to the survival action. Specifically, the highly speculative and fact-intensive issue of pre-death conscious pain and suffering.

The Dual Framework: Wrongful Death vs. Survival Actions

Economic damages, such as lost income, medical bills, and funeral expenses, are not capped but must be proven. They are naturally limited by the actual monetary value of the loss incurred. Non-economic damages are inherently more speculative and therefore more difficult to put a number on, such as the value of the plaintiff’s (the deceased’s representative’s) loss of their loved one or the loss of companionship. It’s a philosophical problem of getting a jury to place a value on a human life. The legislature essentially sidestepped this problem by creating the statutory cap.

Because of this limitation, plaintiff's attorneys naturally look to alternative statutory mechanisms to maximize case value. This is where another statutory creature comes into play: the survival action. A version of this statute first appeared in Wisconsin as R. S. 1849, ch. 96, sec. 6.^[5] Under the common law, the right to bring a personal injury claim ended with that person’s death. The modern statutory scheme allows certain actions, such as personal injury, to survive and be brought by the estate. The damages generally include conscious pain and suffering, mental anguish, medical expenses, and funeral costs sustained prior to death. Survival actions typically require the action to be pursued by the personal representative of the decedent's estate, with recovery flowing to the estate’s heirs or creditors as applicable.

These two causes of action are often brought together in a single lawsuit. However, the two actions remain entirely separate and distinct from each other. The Wisconsin Supreme Court summarized this distinction well, stating:

“The distinction between a claim for noneconomic damages for postdeath injuries (wrongful death) and claims for noneconomic damages for a victim's predeath pain and suffering is well established in Wisconsin law. The two claims are separate claims for separate injuries that may belong to different people. As the court has stated, one cause of action begins where the other ends. The two claims for noneconomic damages, those for the victim's predeath injury and those for a family member's postdeath injury, do not provide a double recovery, ‘but a recovery for a double wrong.’”^[6]

The courts have long recognized that there may be two actions for one death; one for pain and suffering prior to death, which belongs to the estate, and one for the loss the family experienced, which belongs to the family. Given that the post-death action belonging to the family (the wrongful death action) is capped at $350,000, the large driver of non-economic damages in Wisconsin fatality cases is pre-death pain and suffering.

The Battleground of Conscious Pain and Suffering

It is worth looking closely at the language of Wisconsin Jury Instruction—Civil 1855, which states:

“The law provides that the estate of a deceased person is entitled to be compensated fairly and reasonably for pain and suffering endured by (name) from the time of the accident up to the time of death. Pain and suffering includes all physical pain and discomfort, worry and mental distress. In determining the amount of damages for pain and suffering, you will consider the nature, extent, and duration of all physical pain and suffering, mental anguish, apprehension, discomfort or sorrow the deceased consciously endured and suffered between the time of the accident and death and insert as your answer such sum as will, in your judgment, represent reasonable compensation for such pain and suffering as you are reasonably certain (name) endured and suffered as a natural result of injuries received in the accident.”

As this instruction demonstrates, the law leaves the immense discretion of determining the financial value of pre-death pain and suffering entirely to the jury. In civil defense practice, plaintiff's attorneys routinely cite at least two famous Wisconsin cases when making large demands for these survival damages: Wosinski v. Advance Cast Stone Co. (the O’Donnell parking garage collapse) and Wischer v. Mitsubishi Heavy Indus. Am., Inc. (the Miller Park crane collapse). Wosinski affirmed an award of $6.5 million to the estate of the decedent, and Wischer awarded $1.1 million per decedent.

Occasionally, plaintiffs will aggregate data from other matters as a rhetorical tool. In one such instance, a plaintiff’s attorney cited these two benchmarks alongside two separate cases involving deaths caused by drunk drivers, asserting that “in analyzing all four cases, the jury verdicts awarded an average of $381,000.00 for each second of conscious pain and suffering.”^[7]

Deconstructing "Headline" Verdicts

Practitioners must consider a few critical factors when evaluating pre-death suffering against these massive benchmark cases. First, juries are inherently difficult to predict.^[8] Second, high-profile baseline cases frequently involve punitive damages, or at least factual situations that warranted them. The underlying circumstances in many frequently cited survival-action verdicts involve conduct that could easily support punitive claims or evoke an intense emotional response from a jury. Civil defense practitioners should therefore be cautious when opposing counsel relies on those extraordinary verdicts as baseline benchmarks in cases involving ordinary negligence.

For a defendant who is at fault for ordinary negligence and whose conduct is entirely unworthy of punitive damages, these headline verdicts rarely provide for an apples-to-apples comparison. They represent a small, cherry-picked sample size of data compiled to favor plaintiffs, whereas low-value or non-appealed defense verdicts remain difficult to research and compare.

Furthermore, the plaintiff bears the burden of offering explicit proof that the deceased did, in fact, experience conscious pre-death suffering. In Wosinski, the Court of Appeals upheld the multi-million-dollar survival award because the plaintiffs offered specific eyewitness testimony that the deceased looked “very scared” and “terrified” immediately prior to his death.^[9] Additionally, a clinical psychologist opined that there was adequate time for the decedent to cognitively process what was about to happen to him, causing him to experience a “profound sense of fear.”^[10]

Defense Discovery Strategy: Grounding the Claim in Facts

Because Wis JI—Civil 1855 limits recovery to what the deceased "consciously endured," the highly speculative nature of these claims means they must be rigorously deconstructed through medical facts and expert opinions. Defense counsel must focus discovery on establishing two primary metrics: the deceased’s actual cognitive awareness of imminent death, and their objective threshold of physical pain. While plaintiff's attorneys will almost always claim that the entire span of time between an accident and the declaration of death was filled with conscious suffering, forensic record reviews frequently tell a different story.

Take, for example, a case where the deceased was ejected from a vehicle during a head-on collision with a commercial truck at 55 mph, struck the pavement, and was later pronounced dead at the hospital several hours later. The plaintiff’s attorney claimed the entire multi-hour window as conscious pain and suffering.

Through targeted defense discovery, an expert review successfully argued that window down to mere seconds. First, the physical mechanics of hitting pavement at high speed strongly supported immediate trauma sufficient to induce unconsciousness. Second, first responder records demonstrated an initial Glasgow Coma Scale (GCS) score of 4, providing clinical proof of deep unconsciousness. Third, the heavy volume of sedatives administered by emergency medical staff established an absolute baseline after which the deceased could not have consciously perceived pain, even if one assumed for the sake of argument that consciousness briefly existed.

Conclusion