Passafiume v. Jurak

2023 IL App (3d) 220232, 218 N.E.3d 1253, 467 Ill. Dec. 382

• Court: Appellate Court of Illinois
• Decided: May 10, 2023
• Docket: 3-22-0232
• Status: Published

Opinion

2023 IL App (3d) 220232

Opinion filed May 10, 2023 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

PAUL PASSAFIUME, as Independent ) Appeal from the Circuit Court Administrator of the Estate of Lois ) of the 13th Judicial Circuit, Passafiume, Deceased, ) Grundy County, Illinois, ) Plaintiff-Appellee, ) ) Appeal No. 3-22-0232 v. ) Circuit No. 17-L-7 ) DANIEL JURAK, D.O., and ) DANIEL JURAK, D.O., S.C., ) Honorable ) Lance R. Peterson, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE BRENNAN delivered the judgment of the court, with opinion. Presiding Justice Holdridge and Justice Albrecht concurred in the judgment and opinion. ____________________________________________________________________________

OPINION

¶1 Plaintiff, Paul Passafiume, acting as an independent administrator of Lois Passafiume’s

estate, filed a complaint against, inter alia, defendant, Daniel Jurak, alleging medical malpractice

and seeking recovery under the Wrongful Death Act (740 ILCS 180/2 (West 2014)). 1 Lois passed

away at age 34. A jury found Jurak, Lois’s primary care physician, negligent in his management

1 Plaintiff also sought recovery under the Survival Act (755 ILCS 5/27-6 (West 2014)), not at issue here. of her blood clot. The jury awarded $2,121,914.34 in damages, which was reduced to

$1,697,531.48 based on its finding that Lois was contributorily negligent. Jurak only challenges

the damages award. His primary argument is that the trial court erred by allowing the jury to

consider damages for the loss of material services (i.e., household chores) beyond the date of

plaintiff’s remarriage. For the reasons that follow, we affirm.

¶2 I. BACKGROUND

¶3 A. Motions in Limine

¶4 Prior to trial, Jurak filed several motions in limine seeking to limit evidence concerning the

value of lost household services beyond the date of plaintiff’s remarriage, which occurred

approximately 15 months after Lois’s death. In motion in limine No. 20, Jurak moved to bar

plaintiff’s expert, economist Stan Smith, from offering opinions and calculations regarding

plaintiff’s loss of household services and family guidance/accompaniment. As to household

services, Jurak argued that Smith’s testimony was speculative in that it spoke more to general labor

trends than to the specific household services provided by Lois. As to both household services and

family guidance/accompaniment, Jurak also argued that, as part of a consortium claim, these

elements were not amenable to expert testimony addressing the commercial value of those

services. Jurak contended that such testimony was at best marginally relevant and had the potential

to mislead the jury.

¶5 In motion in limine No. 25, Jurak moved in the alternative to limit any of Smith’s opinions

and calculations regarding plaintiff’s loss of household services to the period preceding plaintiff’s

remarriage. Jurak essentially argued as follows. Material services, i.e., household services, were

part of a consortium claim. Further, the components of a consortium claim—loss of material

services, loss of society, loss of companionship, etc.—composed a conceptualistic unity that could

2 not be dismembered into material and sentimental benefits. That plaintiff was able to place a

monetary value on the loss of household services does not, in Jurak’s view, remove the loss of

household services from a consortium claim. Damages for loss of consortium terminate upon

remarriage (Carter v. Chicago & Illinois Midland Ry. Co., 130 Ill. App. 3d 431, 436 (1985)), and,

as household services were an indivisible part of a consortium claim, damages for loss of

household services also terminate upon remarriage. Jurak relied on Dotson v. Sears, Roebuck &

Co., 157 Ill. App. 3d 1036 (1987) (Dotson I), and Dotson v. Sears, Roebuck & Co., 199 Ill. App.

3d 526 (1990) (Dotson II) (First District cases interpreting Elliott v. Willis, 92 Ill. 2d 530 (1982)),

in support of his position.

¶6 Plaintiff responded to Jurak’s motion in limine No. 25 as follows. Plaintiff accepted

Carter’s holding that damages for loss of consortium terminate upon remarriage. He continued,

nevertheless, that loss of consortium and loss of financial support are distinct and independent

remedies under the Wrongful Death Act. Damages for loss of financial support do continue beyond

the date of remarriage. The loss of material services should be categorized as the loss of financial

support rather than the loss of consortium. And, as the law permits damages for the loss of financial

support to extend beyond the date of remarriage, Smith should be permitted to testify to opinions

and calculations regarding plaintiff’s loss of material services beyond the date of plaintiff’s

remarriage. Plaintiff relied on Pfeifer v. Canyon Construction Co., 253 Ill. App. 3d 1017 (1993),

¶7 The trial court ruled as follows. As to motion in limine No. 20, it would allow the expert to

testify to opinions and calculations regarding the loss of household services, but it would bar the

expert from testifying to the same regarding the loss of family guidance/accompaniment. As to

motion in limine No. 25, it would allow evidence, including expert testimony, concerning the value

3 of plaintiff’s loss of household services beyond the date of plaintiff’s remarriage. Addressing both

rulings in conjunction, the court explained:

“[T]he two cases are Dotson and Pfeifer. I’ve read them both. *** When you read Pfeifer,

[the] logic to me [is] that these types of household services that can be easily quantifiable

just like lost wages, just like financial support[.] *** [In contrast,] Pfeifer just cites Black’s

Law definition [of consortium], [and] it’s all about personal, very personal relationship

things that *** a jury is the only entity that can place a dollar amount on[.] [Y]ou can’t

have some expert quantify that [personal relationship], unlike financial support, unlike

what it would cost to have your house cleaned, your dishes done[,] and your yard mowed.

So I am going to make a ruling that they are not part of loss of consortium *** . So [Smith]

will be allowed to testify beyond the remarriage date on that one portion, that household

services portion that I allowed.” (Emphasis added.)

¶8 B. Trial

¶9 At trial, Smith, qualified as an expert economist, testified that plaintiff retained him to

analyze plaintiff’s loss following Lois’s death. Smith opined that the value of plaintiff’s loss of

financial support, calculated by taking Lois’s lost wages plus Lois’s lost employment benefits

minus her personal consumption, was $913,881. Smith considered that Lois, who had a high school

degree, had been working as a clerk for the Village of Braceville for the last seven years. The

position was for 30 hours per week. Lois’s salary had been rising at a steady rate and, in 2013, her

last full year of employment, she earned $23,700. In addition, she received IRA and Social Security

benefits. Smith accounted for continued salary growth, anticipating that Lois would be earning

$35,000 in 2021. However, Smith also attributed a discount value to future earnings, explaining

for example that the present cash value of $1000 to be received 10 years in the future might be

4 approximately $900 due to lost investment potential. Smith stated that his numbers should be

adjusted upward 2 to 3% due to inflation that occurred from the 2020 date the analysis was

completed to the 2021 date of the trial. Smith considered that Paul had stated that Lois enjoyed her

job and planned to work as long as she remained healthy. Smith’s total value of $913,881 was

based on a retirement age of 67. However, if the jury believed that Lois would have retired at 57

or 77, they could subtract or add approximately $28,500 per year.

¶ 10 Smith further opined that the value of plaintiff’s loss of household services was $998,158.

Smith explained that economists have been placing economic values on household services for

decades. Smith had received information from plaintiff about the nature of Lois’s housekeeping.

Lois and plaintiff had lived in a three-bedroom, single family home. Lois cleaned, cooked, did

laundry, did yard work, and helped pay the bills. On average, she spent two to three hours per day

doing these sorts of chores. Smith also considered data tables that projected over time how much

time Lois might spend performing such tasks in the future.

¶ 11 Jurak’s counsel unsuccessfully objected numerous times during Smith’s testimony, stating

“objection, motion in limine, preservation.” One such objection occurred following Smith’s

testimony that he generally assumes a person will do some amount of housework for as long as

the person is physically able.

¶ 12 On cross-examination, Smith further explained the $998,158 calculation for loss of

household services. From his data, he knew that the average wage for those who perform

household tasks, such as “painters, child care workers, waiters and waitresses, private household

cooks, laundry and dry cleaning workers, maids, housekeeping cleaners, ***, auditing clerks, [and]

taxi drivers and chauffeurs[,]” was $14.99 per hour. He determined that the tasks plaintiff reported

Lois to have performed, dishes, laundry, and the like, fit into the aforementioned umbrella

5 category. Smith also added a non-wage component, explaining that employing such workers

typically requires a 50% finders’ fee. Smith was mindful that Braceville was a smaller community,

and therefore, he did not consider higher fees in the range of $40 to $65 per hour that residents of

large metropolitan areas pay for cleaning services.

¶ 13 Jurak’s counsel then submitted an offer of proof by further questioning Smith. Smith

clarified that he did not account for plaintiff’s late December 2015 remarriage in calculating lost

household services. Referring to his chart, however, Smith calculated that the damages through

the end of 2015 for the loss of household services were $24,808.

¶ 14 Plaintiff testified that he and Lois were married in 2007, when he was 32 and she was 26.

When plaintiff met Lois, she worked at McDonalds. At McDonalds, Lois had worked her way up

to be a manager. In 2008, Lois began working as a clerk for the Village of Braceville. Lois enjoyed

her job at the village, where she continued to work up until the time of her death.

¶ 15 On cross-examination, plaintiff testified that, after Lois’s death in September 2014, he

remarried in December of 2015. On redirect, over Jurak’s objection, plaintiff further testified that

his second marriage ended in divorce approximately 18 months later. Moreover, following Lois’s

death, he was sad, lonely, and “not good.” By “not good,” he meant that he “wasn’t thinking right”

and he was “all over the place.”

¶ 16 C. Jury Instructions and Verdict

¶ 17 At the jury instruction conference, Jurak did not object to plaintiff’s instruction Nos. 19

and 32. Instruction No. 19 was the standard Illinois Pattern Jury Instructions, Civil, No. 31.04 (rev.

June 18, 2021) (hereinafter IPI Civil) “Measure of Damages—Wrongful Death—Adult

Decedent—Widow and/or Lineal Next of Kin Surviving.” IPI Civil No. 31.04 provides:

6 “If you decide for the plaintiff on the question of liability, you must then fix the

amount of money which will reasonably and fairly compensate the [lineal next of kin, [or]

widow] of the decedent for the pecuniary loss proved by the evidence to have resulted to

the [lineal next of kin] of the decedent. ‘Pecuniary loss’ may include loss of money,

benefits, goods, services, [and] society [and sexual relations].

Where a decedent leaves [lineal next of kin], the law recognizes a presumption that

the [lineal next of kin] have sustained some substantial pecuniary loss by reason of the

death. The weight to be given this presumption is for you to decide from the evidence in

this case.

In determining pecuniary loss, you may consider what the evidence shows

concerning the following:

[1. What (money,) (benefits,) (goods,) (and) (services) the decedent customarily

contributed in the past;]

[2. What (money,) (benefits,) (goods,) (and) (services) the decedent was likely to

have contributed in the future;]

[3. Decedent’s personal expenses (and other deductions);]

[4. What instruction, moral training, and superintendence of education the decedent

might reasonably have been expected to give decedent’s child had decedent lived;]

[5. Decedent’s age;]

[6. Decedent’s health;]

[7. Decedent’s habits of (industry,) (sobriety,) (and) (thrift);]

[8. Decedent’s occupational abilities;]

[9. The grief, sorrow, and mental suffering of [next of kin];]

7 [10. The relationship between [lineal next of kin, e.g. son] and [decedent].]

[11. The marital relationship that existed between [widow/widower] and

[decedent].]

[Widow/widower] is not entitled to damages for loss of [decedent’s] society and

sexual relations after [date of remarriage]” Id.

Applied to the instant case, instruction No. 19 omitted as inapplicable paragraphs 4 (regarding a

decedent’s child) and paragraph 10 (regarding a plaintiff’s lineal, non-spousal relationship to the

decedent). Instruction No. 19 retained the instructions specific to the spousal relationship,

including that the widower is not entitled to damages for the loss of the decedent’s loss of society

and sexual relations after the date of remarriage. The jury was also instructed that “society” was

“the mutual benefits that each family member receives from the other’s continued existence,

including love, affection, care, attention, companionship, comfort, guidance, and protection.” See

IPI Civil No. 31.11.

¶ 18 Instruction No. 32 was IPI Civil No. 45.01B (approved Dec. 8, 2011), titled “Verdict Form

B—Single Plaintiff and Defendant—Contributory Negligence—Less than 50%.” IPI Civil No.

45.01B provides in pertinent part:

“First: Without taking into consideration the question of reduction of damages due

to the negligence of [plaintiff’s name], we find that the total amount of damages suffered

by [plaintiff’s name] as a proximate result of the occurrence in question is ____$, [itemized

as follows:]” Id.

Applied to the instant case, instruction No. 32 combined lost earnings and lost household services

as a single-line item and set forth the other categories of loss as follows:

“Medical and/or Funeral Expenses: $__________.

8 The Value of Earnings and Household Services Lost and the present cash value of

the Earnings and Household Services reasonably certain to be lost in the future:

$____________.

Pain and suffering (Lois): $__________.

Loss of Society for Paul Passafiume: $_________.

The Grief, Sorrow, and Mental Suffering of Paul Passafiume: $_______.

PLAINTIFF’S TOTAL DAMAGES: $________.”

¶ 19 The jury returned a verdict for plaintiff, reducing the judgment 20% to account for Lois’s

contributory negligence. Prior to the reduction, the jury’s breakdown of damages had been as

follows:

“Medical and/or Funeral Expenses: $12,139.34.

The Value of Earnings and Household Services Lost and the present cash value of

the Earnings and Household Services reasonably certain to be lost in the future:

$1,434,025.

Pain and suffering (Lois): $200,000.

Loss of Society for Paul Passafiume: $75,750.

The Grief, Sorrow, and Mental Suffering of Paul Passafiume: $400,000.

PLAINTIFF’S TOTAL DAMAGES: $2,121,914.34.”

¶ 20 D. Jurak’s Posttrial Motion

9 ¶ 21 Jurak filed a posttrial motion, seeking a new trial or, in the alternative, a remittitur. Jurak

argued that the trial court’s evidentiary rulings on motion in limine Nos. 20 and 25 2 constituted

reversible error. In Jurak’s view, the court’s error stemmed from its failure to recognize that

household services, performed by a spouse as part of the marital relationship, were an element of

consortium and, as such, were not subject to monetization by an expert and were not to be

considered beyond the date of remarriage. Jurak continued that the remarriage issue, which had

been set forth in motion in limine No. 25, represented “99 percent” of his motion.

¶ 22 Plaintiff responded that Jurak forfeited the remarriage issue because Jurak had consented

to instruction No. 32, the verdict form that set forth lost earnings and lost household services as a

single line item. Plaintiff further urged that the general verdict rule precluded recovery, in that

Jurak cannot establish that the entire $1.4 million award for the combined category was not, in

fact, for lost earnings alone. While the expert testified to $913,881 in lost wages, that number

assumed a retirement age of 67 and did not account for increased hours or a promotion.

¶ 23 Jurak replied that, despite the combined structure of the verdict form, the prejudice was

obvious. The expert testified to only $913,881 in lost wages. Therefore, Jurak believed that it was

clear that the $1.4 million award was an excess verdict, which the jury reached in part due to its

incorrect belief that it could consider evidence of nearly $1 million in lost household services

beyond the date of remarriage. Jurak sought a new trial or, in the alternative, a remittitur and a new

award to include only $913,881 for lost wages and approximately $25,000 for lost household

services prior to the date of remarriage.

2 Posttrial, neither the parties nor the trial court consistently linked their arguments and analysis

back to the identifying motion in limine numbers. We do so for clarity.

10 ¶ 24 On May 10, 2022, the trial court denied Jurak’s motion for a new trial on damages or, in

the alternative, remittitur. As to motion in limine No. 20, the court explained that, under its reading

of Pfeifer:

“[H]ousehold services were tangible *** and more akin to lost earnings rather than the

other amorphous elements of loss of consortium (loss of society, sexual relations,

companionship). Further, this court [originally] concluded that the report of Dr. Smith

along with his interview of [plaintiff] established a proper foundation for his testimony

placing a monetary value on the household services of Lois. His opinions were in part based

on objective information and statistics all properly disclosed in discovery. His testimony

was subjected to vigorous cross-examination and the jury was free to accept or reject such

testimony. Defendant could have offered expert testimony to rebut Dr. Smith but chose not

to.”

¶ 25 As to motion in limine No. 25, the trial court explained that Jurak did not properly preserve

the remarriage issue because Jurak did not object to plaintiff’s jury instruction No. 19, which

limited damages for loss of society and sexual relations prior to the time of remarriage but did not

limit damages for the loss of services prior to the time of remarriage. Also, Jurak did not object to

plaintiff’s jury instruction No. 32, verdict form B, which placed lost household services and as lost

earnings on the same line but placed loss of society on a different line.

¶ 26 This timely appeal followed.

¶ 27 II. ANALYSIS

¶ 28 On appeal, Jurak again argues that the trial court’s evidentiary rulings on motion in limine

Nos. 20 and 25 constituted reversible error. Ordinarily, evidentiary decisions are reviewed for an

abuse of discretion. People v. Drum, 321 Ill. App. 3d 1005, 1009 (2001). A trial court abuses its

11 discretion when its decision is arbitrary, fanciful, or unreasonable. People v. Patterson, 2014 IL

115102, ¶ 114. However, this case also involves a legal question—whether the trial court properly

understood a statutory wrongful death action to allow for a plaintiff to recover for the loss of

material services independent of any recovery for loss of the marital relationship—which we

review de novo. See Drum, 321 Ill. App. 3d at 1009.

¶ 29 Specifically, Jurak argues that a loss of consortium includes material services; material

services are inseparable from other elements of consortium; as part of the consortium, material

services share the same elusive traits as other consortium elements that render expert, fair-market

valuation inappropriate; and like any other element of consortium, damages for the loss of material

services terminate upon remarriage. Jurak’s argument fails primarily because he incorrectly

equates a statutory wrongful death action, which plaintiff filed, with a common law loss of

consortium action, which plaintiff did not file.

¶ 30 Before we discuss differences in these causes of action, we must preliminarily address the

trial court’s forfeiture determination. We disagree that Jurak failed to preserve his argument that

the trial court erred in allowing the jury to consider damages for the loss of household services

beyond the date of remarriage. Jurak objected at trial and in a posttrial motion. See Simmons v.

Garces, 198 Ill. 2d 541, 569 (2002) (when the court denies a motion in limine, the party must make

an objection at trial to preserve the issue on appeal); 735 ILCS 5/2-1202(e) (West 2014) (following

a civil jury trial, any party who fails to seek a new trial in his or her posttrial motion waives the

right to apply for a new trial). Expecting Jurak to offer as an alternative to jury instruction No.

19—which specified that damages for loss of society and sexual relations ended upon

remarriage—an instruction that damages for loss of society, sexual relations, and household

services end upon remarriage places too great a burden on Jurak as a litigant and makes little sense

12 in the context of this case. Jurak already argued in limine and objected at trial that evidence

concerning damages for lost household services should not extend beyond remarriage. The court

had made its decision, prior to the instruction conference, that damages for loss of household

services did not end upon remarriage. We also disagree that Jurak’s failure to offer an alternative

to instruction No. 32, verdict form B, resulted in forfeiture of the material services and remarriage

issues. Placing lost earnings and lost household services on the same line merely made it more

difficult to discern prejudice resulting from the admission of the evidence pertaining to household

services. However, as we determine that the trial court did not err in admitting the evidence, we

need not address prejudice.

¶ 31 A. History of Recovery for the Loss of Material Services

¶ 32 Historically, both statutory wrongful death actions and common law loss of consortium

actions allowed recovery for the loss of a material services formerly performed by the decedent

spouse. However, statutory wrongful death actions allowed for damages beyond the date of a

plaintiff’s remarriage whereas common law loss of consortium actions did not. In 1982, the

supreme court held that a plaintiff was permitted to seek damages for loss of consortium within a

statutory wrongful death action. See Elliott, 92 Ill. 2d at 541. Remarriage was not an issue in

Elliott. Since Elliott, four key appellate cases—Carter (Fourth District), Dotson I and Dotson II

(First District), and Pfeifer (Second District)—have addressed new challenges associated with the

admission of evidence concerning material services and the ability to recover for the loss of

material services beyond the date of a plaintiff’s remarriage. We address these cases to the extent

they inform the premises underlying our analysis.

¶ 33 1. Pre-Elliott Cases Under the Wrongful Death Act: Watson

13 ¶ 34 We first consider pre-Elliott actions brought under the Wrongful Death Act. Section 2(a)

of the Wrongful Death Act, which in pertinent part has remained constant since before Elliott,

provides:

“Every such action shall be brought by and in the names of the personal representatives of

such deceased person, and, except as otherwise hereinafter provided, the amount recovered

in every such action shall be for the exclusive benefit of the surviving spouse and next of

kin of such deceased person. In every such action the jury may give such damages as they

shall deem a fair and just compensation with reference to the pecuniary injuries resulting

from such death ***.” (Emphasis added.) 740 ILCS 180/2(a) (West 2014).

See also Elliott, 92 Ill. 2d at 534 (citing Ill. Rev. Stat. 1975, ch. 70, ¶ 2).

¶ 35 A growing body of case law has addressed what constitutes a pecuniary injury under the

Wrongful Death Act. A decedent’s lineal next of kin and spouse are presumed to have suffered

pecuniary loss upon the decedent’s wrongful death. Hall v. Gillins, 13 Ill. 2d 26, 31 (1958). The

loss of material services formerly performed by the decedent for her lineal next of kin and spouse

has long been recoverable as a pecuniary loss in wrongful death actions. See Dodson v. Richter,

34 Ill. App. 2d 22, 24 (1962) (the decedent was a wife and mother of teenage and adult children

who performed work in and about the family home—including washing, gardening, cooking,

making clothing, tending livestock, and helping the husband with his bookkeeping—and the loss

of these services were recoverable as a pecuniary loss); McFarlane v. Chicago City Ry. Co., 288

Ill. 476 (1919); see also IPI Civil No. 31.04. The remarriage of the plaintiff, or the possibility

thereof, does not affect damages recoverable for the wrongful death of the deceased spouse.

Watson v. Fischbach, 54 Ill. 2d 498, 500 (1973). The rationale is that a defendant should not be

permitted to introduce evidence, for the purpose of mitigating damages, that shows the plaintiff

14 has received a benefit incident to the complained-of injury from a collateral independent source.

McCullough v. McTavish, 62 Ill. App. 3d 1041, 1048 (1978).

¶ 36 2. Pre-Elliott Cases in Common Law for Loss of Consortium: Dini

¶ 37 We next consider pre-Elliott actions in common law for loss of consortium. Unlike a

wrongful-death action, which may be filed by a lineal next of kin or a spouse, a loss-of-consortium

action can only be filed by a spouse. Black’s Law Dictionary has defined consortium as a

“ ‘conjugal fellowship’ ” between husband and wife and the right of each to “ ‘the company,

society, co-operation, affection, and aid of the other in every conjugal relation.’ ” Pfeifer, 253 Ill.

App. 3d at 1028 (quoting Black’s Law Dictionary 280 (5th ed. 1979)). Black’s Law Dictionary

defines the loss of consortium as “ ‘loss of society, affection, assistance, and conjugal fellowship,

and includes the loss or impairment of sexual relations.’ ” Id. (quoting Black’s Law Dictionary

280 (5th ed. 1979). Merriam-Webster defines conjugal as “of or relating to the married state or to

married persons and their relations.” Merriam-Webster Online Dictionary, https://www.merriam-

webster.com/dictionary/conjugal (last visited May 2, 2023) [https://perma.cc/YFG9-E8AU].

Consortium is unique to the marriage partner. Mitchell v. White Motor Co., 58 Ill. 2d 159, 162

(1974). The elements of loss of consortium have been described as “indefinitely measured

damages.” Coulter v. Renshaw, 94 Ill. App. 3d 93, 96-97 (1981).

¶ 38 Despite the amorphous and highly personal nature of consortium, there is support in the

case law for the inclusion of material services, i.e., household services or chores, as an element of

loss of consortium. In Dini, the supreme court recounted the history of the common law action for

loss of consortium in the context of deciding, for the first time, that the action was not exclusive

to husbands. Dini v. Naiditch, 20 Ill. 2d 406 (1960). Prior to Dini, only husbands could file an

action for loss of consortium: “Since the husband was entitled to his wife’s services in the home,

15 as he was to those of any servant in his employ, if he lost those services through the acts of another,

that person had to respond in damages.” Id. at 422. The Dini court determined that, as a wife is no

longer her husband’s chattel, the law must accordingly change to recognize that “a husband’s right

to the conjugal society of his wife is no greater than hers, [and] an invasion of the wife’s conjugal

interests merits the same protection of the law as an invasion of the husband’s conjugal interests.”

Id. at 429-30.

¶ 39 In defending its position, the Dini court addressed the concern of double recovery. Id. at

426-27. The Dini court recognized that granting the wife a cause of action for loss of consortium

may result in a double recovery for the same injury if, for example, the husband sought recovery

in an action for his diminished ability to support his family. Id. at 426. It responded with language

that would be cited for decades to come: “This argument emphasizes only one element of

consortium—the loss of support. Consortium, however, includes, in addition to material services,

elements of companionship, felicity[,] and sexual intercourse, all welded into a conceptualistic

unity.” (Emphasis added.) Id. at 427. It continued that any conceivable double recovery for the

loss of support can be obviated by deducting from the computation of damages in the consortium

action any compensation for the loss of support in the other action. Id.

¶ 40 The Dini court also recognized the concern of its opponents that, while an action for loss

of consortium is grounded in the husband’s historic right to the services of his wife, wives have

not, historically, had a corresponding right to the services of their husbands. Id. at 427-28. It

responded that, if the wife’s action was to be historically grounded in sentimental services only,

then so be it—other causes of action, such as alienation of affection, also allow damages for

sentimental services. Id. at 428. It continued, in another oft-cited proposition, that the contrary

position “gratuitously assumes that the concept of consortium is capable of dismemberment into

16 material services and sentimental services—which is but a theoretician’s boast.” (Emphasis

added.) Id. at 427-28.

¶ 41 Numerous courts have relied on Dini’s language that a common law action for loss of

consortium includes the loss of material services. See, e.g., Blagg v. Illinois F.W.D. Truck &

Equipment Co., 143 Ill. 2d 188, 195 (1991) (citing Dini’s language without discussion or direct

application); Manders v. Pulice, 102 Ill. App. 2d 468, 472 (1968). However, this language has

problematic underpinnings. As recognized by the court in Pfeifer, the Dini court was not asked to

decide whether the loss of financial support or material services were components of consortium.

Pfeifer, 253 Ill. App. 3d at 1030-31. As the Pfeifer court held and as both parties accept in the

instant case, the loss of financial support falls squarely outside a consortium claim. Id. at 1031.

The loss of financial support is not an amorphous, highly individualized claim but a tangible and

ascertainable pecuniary damage classically sought in a wrongful-death suit. Id. at 1030. The

problem with the Dini quote is that, in placing the arguably more personalized “material services”

within the consortium claim, it equated the loss of material services with the loss of financial

support—a loss which both parties agree is not a component of the consortium damages.

¶ 42 In addition, numerous courts have relied upon Dini’s language that the concept of

consortium is not capable of dismemberment into its material and sentimental components. See,

e.g., Dotson II, 199 Ill. App. 3d at 529. The Dini dissent observed certain inconsistencies in the

majority’s position, including that, on the one hand, the majority discounted the risk of double

recovery by noting that a court could deduct from the consortium claim damages for components

of consortium that had already been accounted for in other causes of action and, on the other hand,

cautioned that the components of consortium could not be separated. Dini, 20 Ill. 2d at 434

(Schaefer, C.J., dissenting). It would seem to us that, by saying that it is impossible to separate the

17 elements of a loss of consortium claim, we are also saying something about those elements—that

they are amorphous. In contrast, the lost services that have classically been pursued in statutory

wrongful death actions—mending clothes, tending livestock—appear to us to be rather concrete,

and, as the trial court found, are amenable to economic valuation in a manner that the highly

personalized elements of consortium are not.

¶ 43 3. The Inclusion of Consortium Damages

Within a Statutory Wrongful Death Action: Elliott

¶ 44 We now turn to Elliott, where our supreme court held that a plaintiff was permitted to seek

damages for loss of consortium within a statutory wrongful death action and, in so doing, brought

about changes to the wrongful-death IPI instructions. Elliott, 92 Ill. 2d at 540-41. In Elliott, the

plaintiff brought a statutory wrongful death action after her husband was killed in a car accident.

Id. at 533. During the jury instruction conference, the defendants proposed a modified version of

Illinois Pattern Jury Instructions, Civil, No. 31.07 (2d ed. 1971) (hereinafter IPI Civil 2d No.

31.07), which read: “In determining pecuniary injuries, you may not consider *** the loss of [the]

decedent’s society by the widow and next of kin.” (Emphasis in original and internal quotation

marks omitted.) Elliott, 92 Ill. 2d at 533. The trial court gave the instruction over the plaintiff’s

objection. Id. The jury awarded $4500 in relation to the wrongful death action, which was the

stipulated value of the husband’s car. Id. The plaintiff appealed, arguing, inter alia, that the trial

court erred in refusing to instruct the jury on the plaintiff’s loss of consortium. Id. at 534.

¶ 45 The supreme court agreed. Id. at 540-41. Because its holding represents a critical turning

point in the case law, and because our reading of Elliott differs from that of the Dotson courts’, we

quote extended portions of the Elliott analysis:

18 “[T]he question with which we are faced is whether loss of consortium is compensable as

a ‘pecuniary injur[y]’ under the Wrongful Death Act.

[Plaintiff] and defendants agree that consortium is unique to a marriage partner

[citation]. It includes society, guidance, companionship, felicity, and sexual relations.

[Citations.]

Hall v. Gillins [13 Ill. 2d 26 (1958)] and Knierim v. Izzo [22 Ill. 2d 73 (1961)],

where this court previously examined common law actions brought to recover for loss

involving destruction of the family unit, are particularly helpful. The court reasoned in both

of those decisions that since the remedy sought in each case was not significantly different

from the statutory remedy available under the Wrongful Death Act, which allows

compensation for ‘pecuniary injuries,’ a common law action in tort would not be

recognized.” (Emphasis added.) Id. at 534-35.

Further,

“In Knierim[, 22 Ill. 2d at 82-83], the court relied upon Hall in finding ‘that the

differences between an action for loss of consortium resulting from the death of a husband

and an action for pecuniary loss under the Wrongful Death Act are not sufficiently

significant to warrant us recognizing the action for loss of consortium as an additional

remedy available to the widow.’

In addressing the loss of consortium issue in Knierim the court reiterated our words

in Hall that ‘*** [t]he term “pecuniary injuries” has received an interpretation that is broad

enough to include most of the items of damage that are claimed by the plaintiffs in this

case.’ [Citation.] While neither Knierim nor Hall explicitly held that loss of consortium

was to be considered by the jury in deciding what the appropriate amount of damages was,

19 it is apparent that the court denied the common law counts in both actions because the

remedy available in the preemptive wrongful death statute allowed compensation for the

injuries alleged.” (Emphases added and internal quotation marks omitted.) Id. at 536.

Finally,

“It is true that damages for loss of consortium are not capable of being given the

detailed in-depth analysis that an expert can be called upon to testify about in calculating a

decedent’s professional worth where future earnings of an individual employed in a

particular field can be measured with precision and particularity. Just the same the damages

for loss of a husband’s society, companionship and sexual relations are not immeasurable.

All of the elements that comprise what is considered to be loss of consortium may not be

the most tangible items, but a jury is capable of putting a monetary worth on them.

Therefore, to be consistent with the broad interpretation of ‘pecuniary injuries’ under the

Wrongful Death Act [citation] we find loss of consortium to be included.

The purpose of the Wrongful Death Act is to compensate the surviving spouse and

next of kin or the pecuniary losses sustained due to the decedent’s death. [Citations.] It is

intended to provide the surviving spouse the benefits that would have been received from

the continued life of the decedent. The jury should have been instructed that the value of

the decedent’s companionship and conjugal relations could be considered in computing the

damages to be recovered.” (Emphasis added.) Id. at 539-40.

¶ 46 The Elliott court then specifically addressed the changes that should be made to the

standard IPI instructions applicable in statutory wrongful death actions:

“In view of our holding it is clear that the jury was not properly instructed on the

measure of damages. The language of IPI Civil [(2d)] No. 31.07 that indicates that in

20 determining ‘pecuniary injuries’ the jury may not consider ‘[t]he loss of decedent’s society

by the widow and next of kin’ is no longer valid. In determining the pecuniary value of a

spouse under IPI Civil [(2d)] No. 31.04 the society, companionship and conjugal

relationship that constitute loss of consortium are factors that the jury may consider.” Id.

at 541.

¶ 47 4. Post-Elliott: Appellate Decisions

¶ 48 Since Elliott, four appellate court decisions have addressed challenges arising from the

inclusion of consortium damages within a statutory wrongful death claim. These are Carter,

Dotson I, Dotson II, and Pfeifer.

¶ 49 a. Carter

¶ 50 In Carter, the appellate court affirmed the manner in which the trial court handled the

plaintiff’s remarriage when the plaintiff sought consortium damages within his statutory wrongful

death action. Carter, 130 Ill. App. 3d at 435. The trial court had given the plaintiff two options.

Id. Under the first option, the plaintiff would be permitted to seek damages for loss of consortium

but he would also be required to inform the jury of his remarriage. Id. The jury would receive

instructions that the loss of consortium damages would be calculated only to the date of remarriage

but that remarriage would not affect any other element of damages or liability. Id. Under the second

option, the plaintiff could withhold the fact of his remarriage from the jury, but he would not be

permitted to seek damages for loss of consortium. Id. The plaintiff elected the second option and,

in choosing “not to include loss of consortium as an element of damage[,] [he] thus insured that

the fact of his remarriage would not be brought to the attention of the jury.” Id.

¶ 51 The plaintiff appealed, arguing that, under Watson and Elliott, the trial court should have

permitted him to seek damages for loss of consortium and instruct the jury that his remarriage was

21 irrelevant to the determination of damages. Id. at 436. The plaintiff correctly noted that, per

Watson, remarriage was irrelevant to a determination of damages in a wrongful death suit. Id. The

plaintiff then appeared to argue that, because Elliott did not purport to limit Watson, then, when

Elliott allowed damages for loss of consortium to be brought within a wrongful death suit, those

consortium damages were subject to the same rules as other damage elements of the wrongful

death suit—i.e., they were not subject to limitation based on remarriage—and were no longer

subject to the rule governing common law action for loss of consortium that damages be calculated

only to the date of remarriage. Id.

¶ 52 The appellate court disagreed. Id. In a brief analysis, it noted that when, as in Elliott, the

supreme court announces a new principle of law, it overrules, sub silentio, all prior conflicting

authority. Id. The appellate court continued that, as to the damage element of consortium only, a

plaintiff’s remarriage will affect the jury’s determination of damages within the wrongful death

claim. Id. The appellate court rejected the plaintiff’s argument that, because consortium with the

deceased spouse may have been of a different quality from that with the present spouse, a different

result was warranted. Id. Thus, it concluded, the trial court’s decision to give the plaintiff two

options—seek consortium damages but disclose the circumstance of remarriage to the jury, or

forgo consortium damages and keep the circumstance of remarriage from the jury—was “sensible

and logical.” Id.

¶ 53 b. Dotson I

¶ 54 In Dotson I, the appellate court interpreted Elliott as mandating that material services are

now recoverable in wrongful death actions only as part of a loss of consortium claim. Dotson I,

157 Ill. App. 3d at 1044. In Dotson I, the plaintiff’s wife was killed by an explosion following a

repair to a clothes dryer performed by the defendant’s employee. Id. at 1039. The plaintiff brought

22 a statutory wrongful death action. Id. at 1040. He wished to keep the fact of his remarriage from

the jury, so he withdrew his request for consortium damages. Id. at 1043. Nevertheless, the trial

court allowed the plaintiff to testify to the quality of his marriage to the decedent for the purpose

of showing what material services were lost. Id. The jury awarded $1.7 million in the wrongful

death suit. Id. at 1040. The defendant appealed, arguing that the trial court erred in allowing the

plaintiff to testify to the quality of his marriage; the testimony was ostensibly offered to show proof

of the decedent’s material services but was in reality offered to show a loss of society. Id. at 1043.

¶ 55 The Dotson I court agreed with the defendant, and it went a step further. Id. It wrote:

“[E]ven if the quality of [plaintiff’s marriage to decedent] was relevant to the claim for

loss of [the decedent’s] material services, such evidence was precluded by [plaintiff’s]

withdrawal of his loss of consortium claim. Contrary to the understanding of the trial court,

a loss of consortium claim includes a claim for loss of material services.” Id.

¶ 56 To explain its ruling, the Dotson I court recounted the developing law: (1) claims for a

spouse’s services in the home have traditionally been recoverable in wrongful death actions

(McFarlane); (2) evidence of remarriage was irrelevant to a determination of damages in wrongful

death actions (Watson); (3) Elliott allowed plaintiffs to seek damages for loss of consortium within

wrongful death actions (Elliott); and (4) Carter held that Elliott implicitly overruled Watson in

part, in that, moving forward, the circumstance of remarriage was relevant to a determination of

damages for loss of consortium within a wrongful death action. Id. at 1043-44.

¶ 57 From this, the Dotson I court inferred:

“Although neither Elliott nor Carter explicitly hold that a claim for loss of a

spouse’s material services is henceforth incorporated into the now recoverable claim for

loss of consortium in a wrongful death action, they must be construed to such effect. While

23 Elliott did not mention the material services component of the loss of consortium claim, it

affirmed an appellate court decision which held that the trial court should have given the

jury an instruction on loss of consortium, ‘i.e., lost services, society, companionship and

sex.’ (Emphasis added.) (Elliott v. Willis[, 89 Ill. App. 3d 1144, 1145 (1980)].) Moreover,

the supreme court noted that consortium ‘includes society, guidance, companionship,

felicity and sexual relations. (Elliott[, 92 Ill. 2d [at] 535], citing Dini[, 20 Ill. 2d 406].) That

case, in turn, observed that consortium includes ‘in addition to material services, ***

companionship, felicity and sexual intercourse, all welded into a conceptualistic unity’ and

that consortium was incapable of separation into the ‘material and sentimental services.’

(Emphasis added.) [Dini, 20 Ill. 2d at 427-28].

From these cases, we conclude that material services have always been a

component of a claim for loss of consortium and that the allowance of their recovery in

wrongful death actions prior to Elliott was a necessary departure from this general rule. We

further conclude that Elliott mandates a finding that material services are now recoverable

in wrongful death actions only as part of a loss of consortium claim. As such, the trial court

erred when it allowed evidence of the quality of the [plaintiff’s] marriage as evidence that

[the decedent’s] services to [the plaintiff] would have continued in the future. Because [the

plaintiff] withdrew his claim for loss of consortium, which under Elliott included his claim

for loss of material services, this evidence was irrelevant to the issue of the amount of

damages to which [the plaintiff] was entitled. This error requires a reversal of the

$1,700,000 award to the estate of [the decedent] and a new trial.” (Emphases added and in

original.) Id. at 1044.

24 ¶ 58 The Dotson I court added: “Having concluded that [the plaintiff] could not separate a claim

for loss of material services from a claim for loss of consortium, we also conclude that to the extent

the trial court allowed [the plaintiff] to advance a claim for such services it should have allowed

evidence of his remarriage.” Id. at 1045.

¶ 59 c. Dotson II

¶ 60 The Dotson II court addressed the plaintiff’s appeal from the second trial. This time, the

plaintiff argued that the trial court erred in instructing the jury to limit damages for lost material

services to the loss sustained from the time of decedent’s death to the time of the plaintiff’s

remarriage. Dotson II, 199 Ill. App. 3d at 527. The appellate court held that the determination that

material services were recoverable only as part of a loss of consortium claim was law of the case.

Id. at 528. Further, the Dotson II court defended the Dotson I rationale by noting that

(1) historically, the common law recognized a loss of consortium action in the husband for the loss

of his wife’s services; (2) the Dini court held that material services were an element of loss of

consortium; and (3) the Dini court also held that the elements of consortium are welded into an

inseparable, conceptualistic unity. Id. at 529-31. Because of this, the court concluded, “after

Elliott[,] remarriage limits a claim for material services as much as it limits any other element of

consortium.” Id. at 531.

¶ 61 Though Dotson II may have initially appeared to retreat from Dotson I when it referred to

its earlier holding as the law of the case (id. at 528), it later went one step further than its initial

determination that a plaintiff could pursue a claim for material services so long as he disclosed the

fact of his remarriage (Dotson I, 157 Ill. App. 3d at 1045). Dotson II ultimately concluded that a

plaintiff would be precluded from seeking damages for the loss of material services beyond the

date of remarriage. Dotson II, 199 Ill. App. 3d at 531.

25 ¶ 62 d. Pfeifer

¶ 63 In Pfeifer, the trial court limited damages to the date of remarriage for the loss of the

decedent spouse’s financial support within a wrongful death action. 253 Ill. App. 3d at 1026. The

appellate court reversed, explaining that Watson controlled over Dotson I and Dotson II. Id. at

1026-31. In particular, the appellate court stressed that the loss of financial support and the loss of

consortium are distinct and independent components of the pecuniary damages recoverable under

the Wrongful Death Act. Id. at 1031. Watson had held that remarriage does not affect damages

recoverable in a wrongful death action, and this applies equally to the loss of financial support. Id.

at 1027. Further, the defendant “cannot escape application of the [Watson] rule by attempting to

recast financial support as either a type of material service or as an element of loss of consortium

separate from but similar to the ‘material services’ which were at issue in Dotson.” Id. at 1027-28.

¶ 64 The Pfeifer court recognized the language in Dini placing material services in the

consortium basket and appearing to equate material services with loss of financial support. Id. at

1030-31 (“ ‘[t]his argument emphasizes only one element of consortium—the loss of support’ ”

(quoting Dini, 20 Ill. 2d at 427)). The Pfeifer court reasoned, however, that the above-quoted

comment appeared in a dicta portion of the Dini decision, the main point of which had been merely

to establish that a wife’s claim to loss of consortium is equal to that of a husband’s. Id. at 1031.

The Pfeifer court concluded that, if the Dini court had been squarely faced with the question of

whether financial support was an element of consortium, it would not have made the comment. Id.

at 1031.

¶ 65 In support of its holding, the Pfeifer court synthesized the case law pertaining to the

definitions of consortium and material services within a consortium claim. Id. at 1029-30. It

contrasted consortium and material services within a consortium claim with financial support:

26 “[T]he Dotson court, which held that material services were a component of a claim for

loss of consortium, perceived such services as unique to a marital relationship ***.

The concept of consortium, as it emerges from the cases, consists primarily and

essentially of intangible elements which are unique, and very personal, to any given

marriage. The loss of consortium reflects the loss of personal benefits and satisfactions the

surviving spouse enjoyed as a result of a highly individualized relationship with a particular

person. That relationship and those benefits cannot be duplicated. As for material services,

we note first that the courts speak of a wife’s ‘services in the home,’ services ‘as [the

spouse’s] wife,’ and ‘personal services.’ The courts’ discussions do not include, even by

implication, the concept of financial support. Too, while some material services are clearly

more tangible in nature than such things as affection and companionship, they are also

highly personal to, and generally flow from, the particular relationship between specific

spouses. As such, they are properly part of consortium.

In contrast, financial support lost due to the wrongful death of a spouse is totally

tangible. Financial support is wholly unlike the elusive and highly personal characteristics

of consortium. It does not flow from, is not unique to, and does not depend upon the

relationship between particular spouses.” (Emphasis added.) Id.

¶ 66 The Pfeifer court readily distinguished the damages at issue in the case before it—lost

financial support—with those at issue in Dotson I and Dotson II—lost material services. Unlike

us, they were not called upon to agree or disagree with the inferences made by the Dotson courts.

Nevertheless, we agree with Pfeifer that Watson continues to be good law and the general rule in

statutory wrongful death actions. With the exception of damages for loss of consortium within a

wrongful death action, a plaintiff’s remarriage may not affect a jury’s determination of damages

27 in a wrongful death action. We also take away that the concept of consortium “consists primarily

and essentially of intangible elements which are unique, and very personal, to any given marriage.”

Id. at 1029.

¶ 67 B. Application to the Instant Case

¶ 68 The aforementioned cases demonstrate that financial support and material services have,

historically, been recoverable under a statutory wrongful death action. On a parallel track, common

law has, historically, recognized a cause of action for loss of consortium, which also has been said

to include material services. The supreme court in Elliott allowed for a plaintiff to seek damages

for loss of consortium within a statutory wrongful death action. However, as Elliott was not a

remarriage case, it did not instruct upon the consequences of remarriage to a jury’s determination

of damages when a plaintiff chooses to seek damages for loss of consortium (in which remarriage

is a guiding consideration) within a statutory wrongful death action (in which remarriage may not

be considered).

¶ 69 For the reasons that follow, we determine that, when a plaintiff chooses to seek damages

for loss of consortium within a statutory wrongful death action, the classic elements of a statutory

wrongful death action—loss of financial support and loss of material services—are preserved and

remain subject to the supreme court’s holding that remarriage must not affect the jury’s

determination of damages. See Watson, 54 Ill. 2d at 500. The remaining elements of a loss of

consortium claim, including “society, guidance, companionship, felicity and sexual relations,”

remain subject to the Carter rule of termination upon remarriage. See Elliott, 92 Ill. 2d 535

(describing consortium); see also Carter, 130 Ill. App. 3d at 436 (the remarriage rule as applied to

damages for loss of consortium).

28 ¶ 70 As stated in Pfeifer, the concept of consortium “consists primarily and essentially of

intangible elements which are unique, and very personal, to any given marriage.” Pfeifer, 253 Ill.

App. 3d at 1030. Elliott named these elements as “society, guidance, companionship, felicity and

sexual relations,” and “society, companionship[,] and [the] conjugal relationship.” Elliott, 92 Ill.

2d at 535, 541. These core components of consortium are what had not been recoverable in

statutory wrongful death actions prior to Elliott, and, with their addition, the common law action

for loss of consortium was no longer necessary as a separate cause of action in the same suit.

¶ 71 The parties focus on the fact that, in instruction No. 32 (IPI Civil No. 45.01B), plaintiff

placed lost earnings and lost household services on the same line and Jurak did not object. Equally

important, however, is that IPI Civil No. 31.04 places the loss of services and the loss of the marital

relationship on separate lines, a formulation that followed from the supreme court’s analysis in

Elliott. Elliott, 92 Ill. 2d at 541. Thus, Elliott offers additional support for our holding in that

services, a traditional element of a statutory wrongful death action, are distinct from the remaining

elements of consortium. This defeats a critical premise in the Dotson decisions.

¶ 72 The Dotson decisions hang on the support-and-material-services language in Dini, which,

as Pfeifer noted, was set forth in dicta, and on the idea that the consortium is a conceptualistic

unity which cannot ever be broken into its various components. However, as noted, the support-

and-material-services language in Dini has problematic underpinnings. Moreover, the

conceptualistic-unity language in Dini was not iron clad.

¶ 73 To the contrary, the Dini court forecast that, when brought in conjunction with another

cause of action, a trial court may need to deduct damages from the otherwise unbreakable

conceptualistic unity of consortium to avoid double recovery. Dini, 20 Ill. 2d at 427. Here, plaintiff

has not brought a consortium action in addition to a wrongful death action, but he seeks damages

29 for consortium within a wrongful death action. As Elliott instructs, if one cause of action versus

the other—a statutory wrongful death action versus a common law loss of consortium—must bend

from its historical pure form, it is the common law loss of consortium action. This must be the case

where, as here, the plaintiff filed a statutory wrongful death action, not a common law loss of

consortium action. In fact, in Elliott, the supreme court favorably recounted that, when the plaintiff

in Knierim chose to pursue pecuniary losses under the Wrongful Death Act, the common law action

for loss of consortium “would not be recognized.” Elliott, 92 Ill. 2d at 535-36.

¶ 74 Indeed, the Dotson courts’ logic that, because the elements of consortium exist in an

unbreakable unity, a plaintiff in a statutory wrongful death suit can only seek damages for loss of

material services as part of a loss of consortium claim, would make more sense conceptually if

Elliott had held that the statutory wrongful death action would be subsumed within a consortium

claim, not the other way around.

¶ 75 Thus, we decline to follow the Dotson decisions for at least two reasons: (1) Dotson

interprets Elliott to have limited the relief available under the Wrongful Death Act, when, in our

view, Elliott (which was not a remarriage case) intended to expand the relief available under the

Wrongful Death Act while eliminating the need for a separate, common law loss of consortium

action; (2) Dotson potentially eliminates, or at least changes the character of, previously available

relief for one class of litigants (a plaintiff spouse in a wrongful death action) but not for another

class of litigants (a plaintiff lineal next-of-kin in a wrongful death action). For example, under

Dotson, a plaintiff spouse cannot seek damages for lost material services outside his request for

consortium damages. In attempting to prove or describe the lost material services, the plaintiff

spouse would be relegated to highly personal, non-market valuations of the same. See Elliott, 92

Ill. 2d at 540. However, a plaintiff child or parent would be able to seek damages for lost material

30 services and submit market-value evidence of the same. Similarly, a plaintiff spouse who does not

wish to pursue damages for loss of the marital relationship, and in exchange keep his remarriage

from the jury, cannot seek damages for lost material services, even though lost material services

have always been recoverable under a statutory wrongful death action. However, a plaintiff child

or parent, for whom loss of the marital relationship is inapplicable, could seek damages for lost

material services. In this way, material services are not unique to the marital relationship. Cf.

Mitchell, 58 Ill. 2d at 162 (consortium is unique to the marriage partner).

¶ 76 Our holding is consistent with Williams v. BNSF Ry. Co., 2015 IL App (1st) 121901-B,

¶ 49. Williams provides guidance in that it, too, examines a plaintiff’s ability to recover consortium

damages within a statutory cause of action—there, the Federal Employers’ Liability Act (FELA)

(45 U.S.C. § 51 (2006)). Williams instructs that a plaintiff in a FELA action may not recover

consortium damages but may recover for lost household services, the latter having “nothing to do

with [the plaintiff’s] relationship with his wife and the effect [the plaintiff’s] injuries had on that

relationship.” Williams, 2015 IL App (1st) 121901-B, ¶ 49. Thus, Williams did not agree with the

Dotson rationale that a claim of damages for lost material services was an indivisible part of a

claim for loss of consortium such that, if damages for loss of consortium were not sought or could

not be sought, neither could damages for lost material services.

¶ 77 In sum, we reject Jurak’s argument that damages for loss of material services must end

upon remarriage. Aside from the Dotson cases, which are problematic for the reasons stated, Jurak

relies primarily on case law concerning the common law action for loss of consortium. See, e.g.,

Blagg, 143 Ill. 2d at 195; Dini, 20 Ill. 2d 406; Manders, 102 Ill. App. 2d 468. The instant plaintiff

did not file a common law action for loss of consortium. He filed a statutory cause of action for

wrongful death. The case law addressing that cause of action—primarily Watson and Elliott, both

31 supreme court cases—control. Because we have held that the trial court properly allowed plaintiff

to recover for loss of material services independent of his recovery for loss of consortium, i.e., loss

of the marital relationship, we need not address Jurak’s argument that, as a part of the consortium,

material services share the same elusive traits as other consortium elements that render expert,

market valuation inappropriate.

¶ 78 As a final matter, to the extent that Jurak continues to argue that Smith’s testimony

concerning household services was improper even outside the consortium context, we disagree.

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand

the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Ill.

R. Evid. 702 (eff. Jan. 1, 2011). To be admissible, expert testimony must be supported by an

adequate foundation, showing that the facts or data relied upon by the expert are of a type relied

upon by experts in the relevant field. Ill. R. Evid. 703 (eff. Jan. 1, 2011); Wilson v. Clark, 84 Ill.

2d 186, 193-96 (1981). In this case, as the trial court stated: “[Smith’s] opinions were in part based

on objective information and statistics all properly disclosed in discovery. His testimony was

subjected to vigorous cross-examination and the jury was free to accept or reject such testimony.

Defendant could have offered expert testimony to rebut Dr. Smith but chose not to.” There is no

error here.

¶ 79 III. CONCLUSION

¶ 80 The judgment of the circuit court of Grundy County is affirmed.

¶ 81 Affirmed.

32 Passafiume v. Jurak, 2023 IL App (3d) 220232

Decision Under Review: Appeal from the Circuit Court of Grundy County, No. 17-L-7; the Hon. Lance R. Peterson, Judge, presiding.

Attorneys Troy A. Lundquist and Stacy K. Shelly, of Langhenry, Gillen, for Lundquist & Johnson, LLC, of Joliet, and Melinda S. Kollross, of Appellant: Clausen Miller P.C., of Chicago, for appellants.

Attorneys Robert J. Napleton and David J. Gallagher, of Motherway & for Napleton, LLP, of Chicago, and Lynn D. Dowd and Jennifer L. Appellee: Barron, of Law Offices of Lynn D. Dowd, of Naperville, for appellee.