“Anticipatory” Wrongful Death

Is this what a corporation does when it knowingly markets a product that it knows will kill?

No. “Anticipatory” wrongful death is what author Gregory P. Forney calls a claim for loss of earnings and consortium for someone who has arguably had his or her life expectancy shortened because of the negligence of another. In the case mentioned in Mr. Forney’s article, the male plaintiff was negligently not advised of a mass that was lung cancer and the delayed diagnosis greatly shortened his life expectancy. The still-alive plaintiff and his wife brought wrongful death claims; Mr. Forney apparently was one of the lawyers who defended the case.

The article sets forth Mr. Forney’s position on why the plaintiff should not have been permitted to seek such damages – which boil down to the fact that the plaintiff was not yet dead.

Even though the article is a discussion about the law of Kansas I think that you will find it interesting. I know of one such case that was tried in Tennessee about 15 years ago. I must admit it is a little strange to try a wrongful death case on behalf of someone who is still alive. On the other hand, given the fact that there can only be one lawsuit for the wrongful event (at least under Tennessee law), how can a plaintiff with a demonstrated reduction in life expectancy be made whole without a jury considering such damages?

The author indicates that the case is on appeal to the Kansas Supreme Court. I will attempt to find it and report back on what happened.