CBA Record

dant’s employees had testified to the close relationship the women shared with their father. The defendant contended that the daughters’ testimony focused on the rela- tionship they had had with their father as children and their grief at his death, which the defendant contended were not compensable. The court noted that the daughters had testified to a continuing relationship with their father throughout the time he was in defendant nursing home and up to the time of his death, and observed that no evidence was presented to rebut their testimony. In reversing the trial court’s award of zero damages, the court held that a “jury may not arbitrarily reject the testimony of an unimpeached witness.” Significantly, the Watson court relied on People ex rel. Brown v. Baker , where the court held that if “the testimony of a witness is neither contradicted, either by positive testimony or by circumstances, nor inherently improbable, and the witness has not been impeached, that testimony cannot be disregarded even by a jury.” As Watson underscored, a jury that awards zero damages where there is no testimony to raise a contrary inference or question the plaintiff’s credibility has ignored a proven element of damages. On the other hand, the court in Smith v. Mercy Hosp. & Medical Center indicated (like the court in Passow ), that “implicit in the right to weigh the presumption is the right to give it no weight at all.” 203 Ill. App. 3d at 477. Indeed, the Passow deci- sion also discourages plaintiffs from fully testifying to their loss of society, as the jury may give the testimony no weight at all, or simply disbelieve it, thereby defeating the plaintiff’s claim. Practical Trial Strategies to Avoid a Zero Damage Award To avoid the devastating result of Passow, plaintiffs should not rely on the perceived advantage of the rebuttable presump- tion. Rather, they should offer as much independent proof of loss of society as possible. For example, if the plaintiffs testify to multiple telephone calls per week, then admit the telephone records. If the plaintiffs attest to family outings or regular events shared with the decedent,

28 JANUARY 2015 award of no damages for loss of society was not against the manifest weight of the evidence. Passow v. Glaser , No. 2-09- 1178, 2011 WL 10101872 (March 11, 2011). The court simply indicated that the presumption was rebutted by a credibility assessment, which was sufficient because “in committing the assessment of damages to the discretion of the jury, the law also commits to the jury the assessment of the credibility of the witnesses.” Passow at *5. At the other end of the spectrum, courts have made significant awards based on less than compelling evidence. In McKinnis v. United States , the adult children’s contact with their father was limited to occasional visits and phone calls. No. 06 cv 4965 (N.D. Ill. Dec. 10, 2008). They did not even visit him in the hospital before he died–yet the court considered this relationship sufficient

to award $150,000 per adult child.

What Constitutes Adequate Rebuttal? Few cases address the evidence necessary to rebut the presumption of loss of society. Illinois case law establishes that estrange- ment is one, but not the exclusive, method for rebutting the presumption of loss of society. If there is a claim of estrangement, a defendant may elicit affirmative evidence that the decedent and her children had not reconciled through the testimony of a third party, e.g., a relative or a close friend. In Watson v. South Shore Nursing & Rehabilitation Center, 2012 IL App (1 st ) LEXIS 103730, 965 N.E.2d 1200, the appellate court held that a zero damage award for loss of society was against the manifest weight of the evidence, where the decedent’s daughters as well as defen-