Personal Injury Damages
oTwo kinds of Damages
oEconomic Harm
oHospital bills, lost wages, etc.
oPain & Suffering
oContinuing pain, mental anguish, distress, discomfort,
disfigurement, loss of enjoyment of life
Personal Injury Damages – Rationale &
Valuation
oRationales for awarding pain & suffering damages:
o D should be made to know that her actions have caused harm
o P should be given enough money to buy happiness to offset the
pain/suffering D has caused
o
How do we value pain & suffering – such as continuing
pain,
mental
anguish,
distress,
discomfort,
disfigurement, loss of enjoyment of life – when trying to
award damages?
Valuing Pain & Suffering Damages – closing
arguments & jury instructions
Without easy methods of valuation, the jury gets most of
its direction regarding such valuation in closing arguments
(or sometimes jury instructions). Most of the law on the
issue involves the validity of “framing” of closing
arguments.
◦ The issue in Debus and similar cases involves whether P’s attorney
can make certain kinds of arguments to support a claim for
damages in their closing arguments.
◦ As you can see from the case and the notes – some arguments are
disfavored while others aren’t.
Kinds of closing arguments re pain & suffering
damages – which is better/worse?
No dollar figure is suggested – Jury told to “award appropriate compensation”
Lump sum – Presents a dollar figure she wants the jury to consider.
• My client has suffered greatly. … Surely her pain & suffering is worth
$385,000. (D’s suggested approach in Debus)
Per diem – Break down damage award into daily units
• If you multiply 35 years times 365, there are 12,775 days. And 12,775 days
times $30 per day comes out to $383,250. (Debus)
Golden Rule – Ask the jury to “stand in” P’s shoes when considering damages
• “Imagine the following situation from P’s point of view. You have recently
suffered the injury …”
Market Value/Selling Price – Ask the jury to consider “what price they would
require” to suffer the injury if they were the injured party.
• “Consider the amount of money that would be just enough to make you
accept if someone asked you to experience P’s injury.”
Pain & Suffering Arguments – what the states
allow:
2 states limit closing argument to general statements – NO dollar
figures of any kind allowed
48 states at least allow plaintiff’s counsel to state a lump sum dollar
figure in closing argument
Jurisdictions are pretty evenly split on whether to allow “per diem”
statements in closing arguments
◦ 1/3 allow, 1/3 disallow, 1/3 allow with limiting jury instruction
◦ Missouri law does not allow such statements (Faught v. Washam, 329
S.W.2d 588 (1959)
No state law allows golden rule or market-based arguments.
What happens when a personal injury P dies -do pain & suffering damages die with her?
Not entirely. Most states have survivor statutes allowing P’s estate to
sue for lost economic damages and pain/suffering damages on P’s behalf
◦ BUT such statutes are usually limited to damages incurred while P was
alive. P’s estate cannot recover for any theoretical P&S that P might
have incurred if he had lived to the average lifespan of an uninjured
man in his position….
◦ If P’s lifespan after his injury was supposed to be 20 years but he
dies after 2 years, his estate cannot recover 20 years of theoretical
pain & suffering he would have suffered had he remained alive.
◦ See, e.g., Mo. Rev. Stat. 537.020 & 537.090
Wrongful Death Lawsuits – what are they?
oBrought by survivors of the decedent on their own behalf (for death
resulting from D’s conduct that deceased could have sued over)
oSeek damages representing survivors’ losses as a result of decedent’s
death
oHeavily regulated by statute – e.g., Mo. Rev. Stat. 537.080 & 537.090
o Typically regulate WHO can sue and TYPES of damages available
We will focus primarily on “types of damages” BUT note that “who”
can recover is an issue too – see Mo. Rev. Stat. 537.080, which
establishes classes of persons who can sue in priority order.
What kinds of losses can a wrongful death P
recover?
o Original rule – pecuniary/economic losses only
o Medical/funeral expenses, loss of support (what decedent earned less
what she would have spent on herself)
o No state limits recovery to these losses anymore – either because statutes
are expanded or because courts have interpreted statutes more broadly
o Broader version of the rule – most states allow recovery of
pecuniary losses & loss of services
o Loss of services = training, nurture, education, counsel, housework,
etc.
o How should we measure the value of lost services?
Additional possible recoveries for wrongful
death 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 (like many states) – loss of positive attributes
only – why?
▫ How should we measure loss of society?
• Loss of inheritance – some states allow recovery here too
▫ Loss of inheritance = the amount of $ that P can show decedent’s
estate would have accumulated over and above the value of
financial support (what deceased spent on herself and dependents)
▫ Should it be available – on what terms?
Hedonic & Punitive Damages w/ Wrongful
Death
Hedonic damages
o
Damages allowing survivor to recover for value of decedent’s loss
of life to himself – i.e., recovery for intrinsic value of life itself
o
General rule: Not available in wrongful death actions
o
Compare recovery of “hedonic” (aka “loss of enjoyment of life”)
damages in personal injury context
Punitive Damages
o
Jurisdictions split as to whether punitive damages are available in
wrongful death actions
o
Missouri – judges have read the statute to allow punitive damages