Remedies
Reading Assignments
For 9/17, read pp. 108-121. This reading deals with the issue of valuing pain and suffering
damages in personal injury cases. Keep in mind the following questions:
Pain & Suffering
1.
Why do courts award damages for intangible injury such as pain and suffering? How do
they go about valuing such harms? Note that this is an area that is almost entirely
governed by jury instructions or the parties’ closing arguments.
2.
Read Debus v. Grand Union Stores primarily for two things:
a. It gives you a sense of what a closing argument looks like in these kinds of cases.
b. It discusses what the law on “closing arguments” is in these kinds of cases – i.e.,
how can attorneys present their valuation of pain and suffering damages.
c. Make note of the various kinds of closing arguments the case and notes mentions
– lump sum, per diem, golden rule, etc.
3.
Now that you’ve read Debus and the notes:
a. What are the arguments in the Debus opinions and in the notes for and against
the various forms of closing arguments?
b. Do you agree with the courts decisions to disallow the Golden Rule argument but
to allow per diem or lump sum arguments?
Wrongful Death
1.
The original approach to wrongful death damages limited plaintiffs to recovery of
pecuniary losses from the decedent’s death. Does that seem fair? What happens if you
lose a minor child or non-working spouse? Why do you think the original approach was
so limited?
2.
Many states now allow recovery for loss of services in addition to pecuniary losses – how
are those losses defined? Does that reflect all that we value in a person? How do we
value the various services that a loved one provides?
3.
Many states allow recovery for loss of society in addition to the damages listed in 2
above? How do we measure the value of lost society? Why do some statutes exclude
damages due to “grief?”
4.
Increasingly, some states also allow recovery based on “loss of inheritance.” What are
the risks and advantages of this?
There is a handout re the Missouri Wrongful Death statute as well. Consider how it deals with the
different kinds of damage discussed above.