Negligence can kill, but how does cash heal the pain?

Diane Willert had just finished lunch at the Owatonna window manufacturing company where she worked when she looked up and felt dread. A police officer was approaching. Her husband of 32 years, Dale Willert, had been killed an hour earlier in a construction accident, hit from behind by a 3,000-pound barn door that had been improperly installed.

He was 53, leaving behind Diane, two daughters and five grandchildren. She felt comforted that "he never knew what happened." But since that day 11 years ago, Willert has received "an education I really didn't want."

Willert, now 63 and retired, was gracious to step back into that painful place last week and offer me perspective as few others could. After news of Burlington Northern Santa Fe Corp.'s mind-boggling coverup of evidence in the 2003 deaths of four young people, I thought a lot about wrongful-death awards. The families of the victims, whose car collided with a train, largely due to a malfunctioning crossing gate, were awarded nearly $26 million, $4 million of it a sanction for evidence tampering.

Such awards serve essential purposes. The biggest is to punish wrongdoers in hopes of deterring "future misconduct of the same caliber," as Judge Ellen Maas said in the Burlington Northern case. Awards are practical, too, providing for survivors who have lost their breadwinner.

But my question for Willert was philosophical: Does money help people heal?

A century ago, there were no monetary protections against fraud or negligence. Today, our awards are "considerably higher" than those in western Europe, where caps on damages are more common, said John Fabian Witt, a professor at Yale University School of Law and an expert in tort law, the body of law that addresses how best to remedy wrongs.

Tort law is imperfect. Awards are inconsistent and often discriminate against low-wage earners. Many who call for tort reform speak of personal responsibility or point to frivolous lawsuits clogging the courts. And the toughest question remains: How can you place a monetary value on a life?

"The use of dollars is disturbing and troubling," Witt said. "But the positive way to think about it is, we use dollars to try to get other people to treat our interests the way they treat their own. One set of people is forced to take very seriously the interests of another. Sometimes it works, sometimes it doesn't. But it is the common measure of our humanity."

Jim Hilbert, executive director of the Center for Negotiation and Justice at William Mitchell College of Law in St. Paul, agrees that, while imperfect, money as a response "is an enormously important commodity and there is no better substitute in a lot of cases."

The train tragedy, he said, is on everybody's mind "because it represents our system of justice at its most critical moment. It's not that you always need to find blame, but sometimes there is blame. How do we address these grievances?"

Dale and Diane Willert married in 1966 and owned a small dairy and hog farm in Owatonna. It paid most of the bills. She worked so the family would have medical insurance and she'd have some fun money. One Friday in 1998, Dale took a side job pouring concrete at a remodeled barn. The door fell, killing him instantly.

He was buried the following Monday. By Tuesday, on the recommendation of her brother, who got suspicious after touring the accident site, Willert had hired a lawyer.

The contractor offered Willert $150,000 to settle. She felt the sum "was a slap in the face."

The case went to trial in 2002. She drove regularly to St. Paul with her daughters to observe the proceedings. "I didn't understand half the stuff," Willert said. "But it was to show them that, 'Hey, I'm still here.'"

Much of what she did understand pained her. The references to "the accident." The way Dale, the man, got lost in the legal scuffling.

After years of appeals, the case was settled in 2007 for just under $3 million. After lawyers' and other fees, she got just over $2 million in two closely spaced payments.

Willert went back to work a week after Dale died, mostly to keep sane. "I've been told I'm very strong," she said. "Mostly, I was just faking it."

After a particularly bad day at work, four years after her husband's death, she walked out. "I wasn't proud of that, but I'd reached my limit."

Today, Willert gets up when she wants to and is able to pay her health insurance out of pocket. Aside from diabetes, she is in good health. She owns two cars, including a convertible she loves, and she has set up trust funds for her five grandchildren.

She doesn't date, unsure of whether a man would be interested in her as a person "or what I've got in my pocketbook."

The money, she said, did help, emotionally and practically.

"You have to be a realist. He's never coming back. I might as well be able to enjoy my life now and do what I want to do. But I'd give it all back if he would walk through that door."

Gail Rosenblum • 612-673-7350 • gail.rosenblum@startribune.com