In Paula Kingman, et al. v. Dillards, Inc., Case No. 10-2636 (8th Circuit, July 6, 2011), the United States Court of Appeals for the Eighth Circuit considered (among other things) whether the invalid spouse of an injured plaintiff could recover loss of consortium damages for the cost of extended professional care-giver services under Missouri law.
In 2004, Mrs. Kingman was shopping at a Dillard’s store when a high-hanging rack of clothing came loose from the wall and struck her on the right shoulder. Mrs. Kingman reached back violently to protect her face, twisting her right shoulder in the process. Mrs. Kingman developed pain in her shoulder and sought medical treatment, including three separate surgeries to address her shoulder injury. Despite her extensive medical care, Mrs. Kingman’s shoulder injury persisted.
Mrs. Kingman and her husband filed an action against Dillard’s, seeking damages for negligence and loss of consortium in Missouri state court. The action was removed to the U.S. District Court for the Western District of Missouri. Mrs. Kingman’s expert, Dr. Swaim, concluded that Mrs. Kingman would have shoulder pain, decreased motion and weakness indefinitely. Additionally, testimony from three other experts established that due to Mrs. Kingman’s shoulder injury, she could no longer care for her husband, a 300-pound quadriplegic. These experts testified Mrs. Kingman’s shoulder could not tolerate lifting, pushing, or pulling her husband. Prior to the accident, Mrs. Kingman was the primary care-giver for her husband, assisting him with bathing and dressing, feeding, urinary and bowel care, stretching to avoid joint contractures and, importantly, hoisting and turning him to prevent bedsores.
After a nine-day bench trial, the District Court held Dillard’s liable and awarded Mrs. Kingman $186,388 in damages for her past and future medical care and disability and awarded Mr. Kingman $1,000,000 in damages to cover the cost of professional care- giver services for fifteen years – that is, until Mrs. Kingman reached the age of 62, at which point she could no longer be expected to continue moving her husband. Dillard’s appealed both damage awards. The damage award in favor of Mrs. Kingman was upheld, but the damage award in favor of Mr. Kingman was reversed and remanded. The Court held that, “no Missouri court has ever allowed a spouse to recover on a consortium claim for life-long professional nursing care. Indeed, as far as the court’s research reveals, extending the law of consortium claim to embrace such a claim would be unprecedented nationwide. Further, our review of related Missouri case law does not foreshadow an expansion of the law of consortium…” Id. at 10. The Court also stated it found no Missouri authority for the proposition that a consortium award may exceed by a factor of five the damages awarded to the injured spouse. Id. at 12-13. In light of these findings, the $1,000,000 award in favor of Mr. Kingman was reversed and remanded.
Although this issue has not been squarely addressed by Missouri state courts, this Eight Circuit opinion indicates that Missouri state courts would likely not allow a loss of consortium award that: (a) included the cost of extended professional care-giver services; or (b) greatly exceeded the value of the injured plaintiff’s damage award.