Solatium (And Measuring 'Pain & Suffering' in Wrongful Death)
Wrongful death isn’t really a separate tort—in practice, it is normally an underlying negligence tort that is complicated by the fact that the damages include the death of the injured party. Measuring the emotional distress, pain, and suffering caused by wrongful death is always a challenge. In some ways, a wrongful death claim can actually simplify the potential damages—for example, an individual who is rendered quadriplegic and brain damaged but will live for decades could incur tens of millions of medical expenses, whereas a victim who dies instantly does not. Conversely, wrongful death can also complicate cases as the claim now lies with the victim’s estate, which may not be in order or unified about how to proceed with the wrongful death claim.
One unique feature of calculating damages for wrongful death is the concept of “Solatium.” In Colorado, for example, the newly adjusted cap (as of January 1, 2020) for noneconomic damages (pain, suffering, emotional distress) is $584,210. C.R.S. § 13-21-203(1). That number, however, is a cap, and the actual noneconomic damages must be proven by testimony and evidence at trial and found by a jury. In the alternative, the plaintiff (here, the PR of the estate of the victim) may, in the alternative, elect Solatium—which means that they forego the ability to prove noneconomic damages up to the $584,210 cap, but if wrongful death is established they are automatically awarded the Solatium value, which in Colorado is currently $108,840. C.R.S. § 13-21-203.5.
It is important to stress that this ‘noneconomic damages cap’ vs. ‘Solatium’ issue applies only to noneconomic damages (pain, suffering, emotional distress). Actual economic damages that can be proven at trial can potentially far exceed this cap. If a surgeon, for example, was earning $400,000 per year and had an expected remaining 20 years in his career, one can easily see how this figure can reach well into the millions of dollars.