Emotional Distress in a Personal Injury Claim in New Mexico

In cases involving serious injuries, the spouse or child of the injured person may often recover damages for loss of consortium as part of the claim for pain and suffering damages. New Mexico Uniform Jury Instruction 13-1810A on loss of consortium provides for recovery for the Plaintiff’s spouse or child for emotional distress associated with the loss of society, guidance, companionship and sexual relations with the injured or deceased person.

In the case of a deceased spouse or parent, loss of consortium can be a devastating loss to the surviving spouse or child. Loss of consortium claims in a wrongful death claim can result in very large settlements or judgments for the surviving spouse or child.

In the great majority of cases, however, the loss of consortium claim does not involve a wrongful death action. Instead, the claims are made in the context of physical injuries that have affected the relationship of the Plaintiff and his or her spouse or children. Most often, the claims have become most closely associated with claims for loss of sexual relations between the Plaintiff and his or her spouse.

Certainly, physical injuries, even soft tissue back injuries, will affect the sexual relations of the Plaintiff and his or her spouse. There is no question that the claim has value. The disruption of sexual relations between spouses is a very serious matter. These injuries can have devastating emotional consequences for the relationship. In a perfect world, they would be compensated without question as an obvious consequence of physical injuries.

Having said that, you should consider the consequences of bringing a loss of consortium claim. The claim basically suggest that you and your spouse had very strong emotional bonds, and healthy sexual relations. The discovery on these matters can be incredibly invasive and embarrassing. The Defendant’s attorneys will often hire private investigators to look into your relationship with your wife to show that you had neither a good relationship nor healthy sexual relations with your spouse. More on point, particularly aggressive defense attorneys will look to show or suggest extramarital relationships or even deviant sexual practices.

Depositions on loss of consortium claims can be pretty brutal and humiliating. Questions during depositions do not have to be relevant to be asked. They need only possibly lead to the discovery of other admissible evidence. This opens up questioning for your sexual history and the sexual history of your spouse. It opens up questioning on sexually transmitted diseases, unplanned extramarital pregnancies, birth control practices, birth control history and many other issues related to the pre-marital and extramarital sexual practices of the Plaintiff and the spouse. If this is not enough, the Defense can ask some pretty explicit questions about your current sexual activities inside the marital relationship to try to suggest that it was not a healthy or normal relationship.

These findings or even suggestions can be extremely harmful to the loss of consortium claims. Not only can they harm the loss of consortium claim, juries can be pretty conservative in this area. Juries can be hypocritical, pius and unforgiving in areas related to sex, thereby reducing the value of the case in chief. Before pursuing these claims, you need to honestly assess these issues. You need to ask yourself how a jury might react hearing this evidence. If that is not enough, ask how your mother might react, then just assume someone just like her is sitting on the jury. In fact, someone much less understanding than your mother on her worst day will be sitting on the jury.

Collins & Collins, P.C.

www.collinsattorneys.com