Understanding the Implications of California’s ‘Death Discount’ Resurgence on Litigation

In California, the legal landscape surrounding personal injury actions has undergone significant changes, particularly regarding cases where a plaintiff dies during litigation. Historically, if a plaintiff filed a personal injury claim and subsequently passed away, the case would transition into a wrongful death action. Unfortunately, this transition often resulted in a substantial decrease in the case’s value.

This depreciation stemmed from California’s Code of Civil Procedure section 377.34 (“CCP 377.34”), which stipulated that pain and suffering damages were non-recoverable after a plaintiff’s death. Consequently, damages were restricted to losses incurred by the decedent prior to death, including any penalties or punitive damages they would have been entitled to had they lived. This limitation was often referred to as a “death discount” by plaintiffs.

However, a pivotal change occurred in October 2021 when California Governor Gavin Newsom signed Senate Bill 447. This legislation was a response to the significant backlogs caused by the COVID-19 pandemic and allowed personal representatives of estates to recover pain and suffering damages in California litigation matters.

The amendment to CCP 377.34 allowed successors-in-interest to recover damages for a decedent’s pain, suffering, or disfigurement, provided the action was either granted trial preference before January 1, 2022, or was filed after that date and before January 1, 2026. This change was celebrated by plaintiffs as it significantly altered the valuation of cases in California following the death of an injured plaintiff.

As a result of this amendment, survivors or personal representatives could claim damages for pain and suffering, leading to substantial increases in the amounts awarded in survival actions. Additionally, this change prompted higher settlement demands, resulting in larger settlements for a decedent’s representatives. Interestingly, the amendment also benefited defendants by diminishing plaintiffs’ arguments for trial preference. Previously, plaintiffs often contended that a preferential trial date was essential to avoid losing the right to recover pain and suffering damages if they died before the trial. With the amendment, this argument lost its validity.

Despite these advancements, the amendment to CCP 377.34 included a sunset provision set for January 1, 2026, meaning it would expire unless extended by the California Legislature. In 2023, Senate Bill 29 was introduced to extend the non-economic survival damages established by SB 447 through January 1, 2027.

SB 29 received strong support from plaintiffs who argued that SB 447 addressed an unjust gap in California law. However, it faced significant opposition from the medical industry and insurers, who contended that it undermined the balance established in the 2022 revisions to the Medical Injury Compensation Reform Act, potentially leading to increased malpractice insurance costs. Ultimately, in September 2025, SB 29 was rendered inactive, meaning it would not be voted on before the legislative session concluded. Consequently, SB 447 lapsed, and CCP 377.34 reverted to its original form for all matters filed after January 1, 2026.

This reversion means that successors-in-interest will no longer be able to claim non-economic damages such as pain and suffering or disfigurement in survival actions. Damages will now be limited to economic losses, including medical expenses, lost earnings, and future costs. The practical effect of this lapse is likely to result in lower damage caps, as case values will generally decrease, particularly in instances where non-economic damages were a significant component of the plaintiff’s claims.

As we approach 2026, any cases filed this year will fall under the reverted code provisions. However, it is anticipated that courts may encounter new disputes regarding the application of the sunset clause to cases pending at the turn of the year.

Stricklin is a partner at Walsworth and leads the firm’s life sciences practice group. She defends clients in complex civil litigation, including life sciences, product liability, and general liability matters, and has experience representing manufacturers, suppliers, retailers, and medical device and pharmaceutical companies in multi-party disputes.

Cortes is an associate at Walsworth and focuses her practice on general liability, asbestos litigation, and toxic tort matters. She handles all aspects of pretrial case workup and brings experience from her roles as a litigation law clerk for a major public utilities company and as a legal advocate for underprivileged youth.

Topics
Lawsuits
California

In California, the legal landscape surrounding personal injury actions has undergone significant changes, particularly regarding cases where a plaintiff dies during litigation. Historically, if a plaintiff filed a personal injury claim and subsequently passed away, the case would transition into a wrongful death action. Unfortunately, this transition often resulted in a substantial decrease in the case’s value.

This depreciation stemmed from California’s Code of Civil Procedure section 377.34 (“CCP 377.34”), which stipulated that pain and suffering damages were non-recoverable after a plaintiff’s death. Consequently, damages were restricted to losses incurred by the decedent prior to death, including any penalties or punitive damages they would have been entitled to had they lived. This limitation was often referred to as a “death discount” by plaintiffs.

However, a pivotal change occurred in October 2021 when California Governor Gavin Newsom signed Senate Bill 447. This legislation was a response to the significant backlogs caused by the COVID-19 pandemic and allowed personal representatives of estates to recover pain and suffering damages in California litigation matters.

The amendment to CCP 377.34 allowed successors-in-interest to recover damages for a decedent’s pain, suffering, or disfigurement, provided the action was either granted trial preference before January 1, 2022, or was filed after that date and before January 1, 2026. This change was celebrated by plaintiffs as it significantly altered the valuation of cases in California following the death of an injured plaintiff.

As a result of this amendment, survivors or personal representatives could claim damages for pain and suffering, leading to substantial increases in the amounts awarded in survival actions. Additionally, this change prompted higher settlement demands, resulting in larger settlements for a decedent’s representatives. Interestingly, the amendment also benefited defendants by diminishing plaintiffs’ arguments for trial preference. Previously, plaintiffs often contended that a preferential trial date was essential to avoid losing the right to recover pain and suffering damages if they died before the trial. With the amendment, this argument lost its validity.

Despite these advancements, the amendment to CCP 377.34 included a sunset provision set for January 1, 2026, meaning it would expire unless extended by the California Legislature. In 2023, Senate Bill 29 was introduced to extend the non-economic survival damages established by SB 447 through January 1, 2027.

SB 29 received strong support from plaintiffs who argued that SB 447 addressed an unjust gap in California law. However, it faced significant opposition from the medical industry and insurers, who contended that it undermined the balance established in the 2022 revisions to the Medical Injury Compensation Reform Act, potentially leading to increased malpractice insurance costs. Ultimately, in September 2025, SB 29 was rendered inactive, meaning it would not be voted on before the legislative session concluded. Consequently, SB 447 lapsed, and CCP 377.34 reverted to its original form for all matters filed after January 1, 2026.

This reversion means that successors-in-interest will no longer be able to claim non-economic damages such as pain and suffering or disfigurement in survival actions. Damages will now be limited to economic losses, including medical expenses, lost earnings, and future costs. The practical effect of this lapse is likely to result in lower damage caps, as case values will generally decrease, particularly in instances where non-economic damages were a significant component of the plaintiff’s claims.

As we approach 2026, any cases filed this year will fall under the reverted code provisions. However, it is anticipated that courts may encounter new disputes regarding the application of the sunset clause to cases pending at the turn of the year.

Stricklin is a partner at Walsworth and leads the firm’s life sciences practice group. She defends clients in complex civil litigation, including life sciences, product liability, and general liability matters, and has experience representing manufacturers, suppliers, retailers, and medical device and pharmaceutical companies in multi-party disputes.

Cortes is an associate at Walsworth and focuses her practice on general liability, asbestos litigation, and toxic tort matters. She handles all aspects of pretrial case workup and brings experience from her roles as a litigation law clerk for a major public utilities company and as a legal advocate for underprivileged youth.

Topics
Lawsuits
California