Pain & Suffering Damages – What the States Allow

1. Pain & Suffering Damages – What the States Allow • 2 states limit argument to general statements – NO dollar figures allowed at all • 48 states at least allow plaintiff’s counsel to state a lump sum dollar figure in closing argument • Jurisdictions are split on whether to allow “per diem” statements in closing arguments • Missouri does not allow such statements (Faught v. Washam, 329 SW2d 588)

2. Possible Alternatives to Debus Arguments re Pain & Suffering Damages • Golden Rule Arguments • In considering what is an adequate sum for Susanne, suppose I was to offer you a job and I was to say that there was one peculiar thing about this job. If you take it, you have to keep it for the rest of your life – you work 7 days a week, day and night, and you get no vacations ever. The other thing is you only get paid $30 a day. Here is your job – your job is to suffer Susanne’s disability. • Market Value Arguments • Could you ask the jury to consider awarding the amount a person would demand to suffer those injuries in a voluntary transaction? • Possible proxies for market value?

3. What happens when a personal injury P dies -- do pain & suffering damages die with her? Not entirely. Most states have survivor statutes which allow P’s estate to sue for lost economic damages and pain & suffering damages on behalf of P. BUT such statutes are usually limited to damages incurred while P was alive. P’s estate cannot recover for any P&S after death. See, e.g., Mo. Rev. Stat. 537.090

4. What are wrongful death lawsuits? • Brought by survivors of the decedent on their own behalf • Seek damages representing survivors’ losses as a result of decedent’s death • Heavily regulated by statute – e.g., Mo. Rev. Stat. 537.080 & 537.090 • Typically regulate WHO can sue and TYPES of damages available

5. What kinds of losses should wrongful death P recover? • Original rule – pecuniary losses only • medical/funeral expenses, loss of support (≠ lost wages) • No state follows this narrow rule • Broader version of the rule – most states allow recovery of pecuniary losses & loss of services • Loss of services = training, nurture, education, counsel, housework . . . • How do you measure the value of lost services?

6. Additional possible recoveries depending on the state: • Loss of society – a slight majority of states also allow • Loss of society = Loss of companionship, comfort, attention, love … • Note Missouri – loss of positive attributes only – why? • How do we measure loss of society? • Loss of inheritance – some states allow recovery • Loss of inheritance = the amount of $ that P can show decedent’s estate would have accumulated over and above the value of financial support • Should it be available – on what terms?

7. Hedonic & Punitive Damages w/ Wrongful Death • Hedonic damages • Damages allowing survivor to recover for value of decedent’s loss of life – i.e., recovery for intrinsic value of life itself • General rule: Not available in wrongful death actions • Compare recovery of “hedonic” (aka “loss of enjoyment of life”) damages in personal injury context • Punitive Damages • Jurisdictions split as to whether available in wrongful death actions • Missouri – punitive damages are allowed

8. Damages for Dignitary Torts What is a dignitary tort? Torts that assault or impair our dignity but don’t necessarily cause physical or pecuniary harm. As with pain & suffering damages, difficult valuation issues arise Levka v. City of Chicago P sues for emotional distress resulting from illegal search after misdemeanor arrest. Awarded $50 K for distress but 7th Cir. remits down to $25K.

9. What could Levka’s attorney have done differently to convince the appellate court of her emotional distress? • Focus on plaintiff’s harm • Emphasize particular frailty • Reframe inferences court drew from evidence • Bolster psychological evidence • Focus on defendant’s conduct • Try to frame as more outrageous than court characterized it

10. How courts generally approach damages with dignitary torts: • Courts generally attempt to gauge damages in light of: • 1) Plaintiff’s injury (especially if particular frailty) and • 2) Defendant’s conduct (how outrageous?) • Applied as a sliding scale. • Problems w/ focusing on D’s conduct? • Problems w/ focusing on P’s frailties?

11. How relevant are other jury verdicts? Should the Levka court have used other verdicts as comparisons? Are they relevant? What if other higher verdicts came first? How mathematically precise should court try to be in comparing “excessiveness?” What dangers are there in using comparison verdicts?

12. Remittitur Defined: When district or appellate court orders a reduction in damages because they are “grossly excessive” Often the court gives the option of a new trial instead Should judges have this power?