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Pain and Suffering Damages

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Pain and Suffering Damages

Hanover
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Posted 07/06/09 - 09:06 AM: Subject: Pain and Suffering Damages	#1
In the US, and I suppose in many Western countries, a person who is injured may seek emotional damages, often refered to as pain and suffering damages, in a trial. That is, in addition to being compensated for any out of pocket damages (like unpaid medical bills, lost wages, damages to a motor vehicle, etc.), the person can also receive an amount, as determined by the "enlightened conscience" of a jury, to compensate the person for their pain. My question is whether it makes any sense to reduce pain to a dollar (or Euro) amount. Considering that pain and suffering is not an item that is bought and sold in the market place, it has no economic value (i.e. there being no supply/demand for pain, computing its value is non-sensicle.) From a moral perspective, can it also be thought of as immoral to reduce human emotions or human life into dollar amounts? I have long been skeptical of the concept of pain and suffering damages, and I'd be interested in hearing other's views of this, especially those who may have experiences in legal systems outside the US. I would suspect that many may think the US tort system is somewhat out of control.
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Benkei
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Posted 07/06/09 - 09:48 AM:	#2
In the Netherlands we do not have a general rule for it. Only in specific instances can a person claim emotional damages, such as purposeful slander or slander of a deceased. The idea behind the Dutch system is that if this were allowed a person could potentially end up in a better position than before the incident. This is also why we do not have punitive damages (but strangely enough we do allow penalty clauses in contracts!).
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xzJoel
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Posted 07/06/09 - 10:31 AM:	#3
When someone questions pain and suffering damages, there is likely a fundamental disconnect between their position and mine. None-the-less, I will state some fairly obvious things. 1. Having no market does not equal lack of value. You cannot lawfully sell/buy a body part. That does not mean that you would not pay a certain amount for the ability to keep your arm. Equally, you might pay a certain amount to buy an arm should you be missing one. Other examples include how much you would pay for someone not to beat you or how much you would pay to be pain free. 2. Difficulty of valuation does not mean no value. Paintings, real estate, businesses, stocks, etc. are notoriously difficult to value. (Some more than others) Just because one person is willing to pay lots of money for the Mona Lisa does not mean that all people are wiling to pay lots of money. You must invoke experts in an uncertain market to present evidence of value. This is a typical practice. 3. Generally someone that has been harmed did not chose to be harmed. If they have suffered pain, it is as a direct result of the injury caused to them by the tortfeasor. Where a person went from being pain free to being in pain, the tortfeasor is responsible for that change of affairs. 4. The law deals in monetary relief. 5. Equitable remedy is not available to restore someone to a harm free position. (This relates to a condition in which chronic pain/harm/disability results from the injury.) Without belaboring the point with outrageous examples, suffice it to say that a person that is harmed would likely pay money not to be harmed. In likelihood, the person doing the injury would also pay money not to be harmed. The only person in the conversation that thinks there is no monetary equivalent to non-harm is you. If compensatory damages (which are the category of damages that include pain and suffering) are intended to restore the victim to the position they would have been in but for the tortfeasor’s conduct, you either make an effort to appropriately compensate or you give up. You seem to be opting to give up. If your problem is with the jury system, why direct the criticism at compensatory damages for pain and suffering? Certainly you could craft a jury verdict that would make their award more in line with our societal notion of just award. If you are going to engage in negligent/intentional conduct resulting in harm to an unwilling victim, you should not be free from speculative damages. You don’t get to pick in advance that you can afford to hurt someone and then go an hurt them. (Alternatively, that you can afford not to care whether your conduct will end up hurting someone because you can pay to hurt them.) Workers compensation is not a good model for damages for unwilling participants. (Absolute recovery, payment schedule for disability, payment schedule for lost time at work, no further damages.)
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ciceronianus
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Posted 07/06/09 - 10:34 AM:

Eligibility for damages for pain and suffering, and especially for emotional distress, is limited in some (at least--I don't pretend to know them all) American states as well. However, there is a general recognition that physical pain is compensable. And, the evidence submitted in favor of an award for pain and suffering is not entirely subjective, and can include testimony not merely of the person suffering pain, but doctors and other witnesses as well.

As for whether it makes sense to "reduce pain to a dollar amount", if it is accepted that physcial pain can be the result of the negligent conduct of another, and if it is felt that there should be some judicial recognition of this fact, there are not many options available. A hearfelt apology, or the promise to include the victim in one's prayers, will not strike many as adequate. So, I think, would the suggestion that the victim just suck it up and bear with the pain. How else compensate than economically?

Regarding the moral issue you raise, first, don't confuse law with morality. Second, unless you are of the belief that people do not experience pain, or that pain of any kind is insignificant, what would be immoral about compensating someone for pain caused by the negligent or intentional conduct of another?

Punitive damages are awardable only in extraordinary circumstances of reckless or malicious conduct.

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Hanover
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Posted 07/06/09 - 12:43 PM:	#5
xzJoel wrote: 1. Having no market does not equal lack of value. You cannot lawfully sell/buy a body part. That does not mean that you would not pay a certain amount for the ability to keep your arm. Equally, you might pay a certain amount to buy an arm should you be missing one. Other examples include how much you would pay for someone not to beat you or how much you would pay to be pain free. To the extent that the loss of a body part or any injury can be shown to equate to specific economic injury, I would have no problem compensating the person. If your job prospects or ability to produce can be shown to suffer, then that would be an item of special damages (that which can be specifically measured) as opposed to general damages (that which is measured upon general notions of conscience). 2. Difficulty of valuation does not mean no value. Paintings, real estate, businesses, stocks, etc. are notoriously difficult to value. (Some more than others) Just because one person is willing to pay lots of money for the Mona Lisa does not mean that all people are wiling to pay lots of money. You must invoke experts in an uncertain market to present evidence of value. This is a typical practice. Those items are difficult to estimate (or guess) a value. The value of a painting is what it sells for. It's not difficult to stage an auction, but guessing what the final result will be is difficult. 3. Generally someone that has been harmed did not chose to be harmed. If they have suffered pain, it is as a direct result of the injury caused to them by the tortfeasor. Where a person went from being pain free to being in pain, the tortfeasor is responsible for that change of affairs. That I am responsible for someone else's pain doesn't mean that money will alleviate the pain. I would suspect that a parent of a deceased child who is awarded $1 billion for her child's negligently caused death would be really, really rich, but just as sad as before the award. 4. The law deals in monetary relief. I know. I was questioning the propriety of that. 5. Equitable remedy is not available to restore someone to a harm free position. (This relates to a condition in which chronic pain/harm/disability results from the injury.) There is no meaningful distinction between a trial judge's power to provide equitable relief (in limited circumstances) and a jury charge that it act in its "enlightened conscience." Without belaboring the point with outrageous examples, suffice it to say that a person that is harmed would likely pay money not to be harmed. In likelihood, the person doing the injury would also pay money not to be harmed. The only person in the conversation that thinks there is no monetary equivalent to non-harm is you. The question "how much would you pay not to be harmed" is not what juries are asked to decide. You're already limiting the jury's broad charge, which is to basically do whatever it wants. I do agree that the lack of guidelines are a problem, but I still see a problem with placing a value on pain, as if it's a commodity. If compensatory damages (which are the category of damages that include pain and suffering) are intended to restore the victim to the position they would have been in but for the tortfeasor’s conduct, you either make an effort to appropriately compensate or you give up. You seem to be opting to give up. I'm not giving up; I'm just admitting that the award of money is not rationally related to the injury. With my wrongful death example, if you are willing to acknowledge that $1 billion would not make the person happy again, then why pay it? Personally, I find the calculation offensive. The value of the child is infinite. To attempt to try to trade a sack of gold for a child's life is a fairly disgusting proposition. If your problem is with the jury system, why direct the criticism at compensatory damages for pain and suffering? Certainly you could craft a jury verdict that would make their award more in line with our societal notion of just award. My problem is with pain and suffering. I have no problem with juries. If you are going to engage in negligent/intentional conduct resulting in harm to an unwilling victim, you should not be free from speculative damages. You don’t get to pick in advance that you can afford to hurt someone and then go an hurt them. (Alternatively, that you can afford not to care whether your conduct will end up hurting someone because you can pay to hurt them.) Negligent means that you didn't mean to. I've not suggested that people should go unpunished for intentional conduct. That's why we have jails. I'm not sure the result of widespread lawsuits is more careful behavior. I think people just carry more insurance. Workers compensation is not a good model for damages for unwilling participants. (Absolute recovery, payment schedule for disability, payment schedule for lost time at work, no further damages.) Why not?
"Nothing is impossible for the man who will not listen to reason." John Belushi, "Animal House" "I have opinions of my own --strong opinions-- but I don't always agree with them." G.W. Bush

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Posted 07/06/09 - 01:04 PM:	#6
ciceronianus wrote: And, the evidence submitted in favor of an award for pain and suffering is not entirely subjective, and can include testimony not merely of the person suffering pain, but doctors and other witnesses as well. Observations of one's disabilities would be objective as would MRIs, body casts, and the like. I'm not questioning that one's pain can reasonably be shown to the jury (unless they were all philosophers who questioned whether other minds actually existed). My point is that the entire enterprise lacks any meaningful direction. The jury is largely given unbridled discretion to assign a dollar figure to something that is simply not reducible to money. What would I pay for you to slam into my car at 65 mph? Nothing. A hearfelt apology, or the promise to include the victim in one's prayers, will not strike many as adequate. So, I think, would the suggestion that the victim just suck it up and bear with the pain. How else compensate than economically? That is the way it is. I'm suggesting it be different, like in Amsterdam as noted above. The victim will suck it up and bear the pain regardless of whether he is awarded money. You give a hungry man a new car, he's still hungry. I don't see a rational relationship between my neck hurting and a jury award of $40,000 or whatever. Regarding the moral issue you raise, first, don't confuse law with morality. Second, unless you are of the belief that people do not experience pain, or that pain of any kind is insignificant, what would be immoral about compensating someone for pain caused by the negligent or intentional conduct of another? Pain is real. I think it's immoral (and irrational) to assign physical worth to immaterial loss. Life is invaluable, which means that it has no monetary value due to its infinite nature. I say the same of relationships, emotions, and the like. If you can equate the loss to money, then I have no problem with compensating for nurses, reduced incomes, and whatever else you need. My problem is throwing money on top just for good measure after you've calculated the mundane losses. Punitive damages are awardable only in extraordinary circumstances of reckless or malicious conduct. And what could be worse than providing a lawyer with a financial incentive the right to seek "fair" punishment from a malicious actor? Why not provide our police a percentage of every citation they write in an effort to seek more vigorous enforcement? Would there be a meaningful difference?
"Nothing is impossible for the man who will not listen to reason." John Belushi, "Animal House" "I have opinions of my own --strong opinions-- but I don't always agree with them." G.W. Bush

xzJoel
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Posted 07/06/09 - 01:25 PM:	#7
We've very quickly come to loggerheads. You think that money can't replace a person and I agree. I think that a monetary award is a poor substitute for a person, but it is the best we have and should, therefore, be given. You disagree. I'd much rather (as I'm sure most people would) have a sack of gold and no child than no sack of gold and no child. I doubt there is anything more to be said. Regarding jury charges, please pick your jurisdiction for discussion. This is an excerpt from the New Jersey model jury charge for pain and suffering found at 8.11E. http://www.judiciary.state.nj.us/civil/civindx.htm wrote: The law also recognizes as proper items for recovery, the pain, physical and mental suffering, discomfort, and distress that a person may endure as a natural consequence of the injury. The measure of damages is what a reasonable person would consider to be adequate and just under all the circumstances to compensate [plaintiff]. Here are some factors you may want to take into account when fixing the amount of the award for disability impairment, loss of enjoyment of life, pain and suffering. You may consider [plaintiff's] age, usual activities, occupation, family responsibilities and similar relevant facts in evaluating the probable consequences of any injuries you find he/she has suffered. You are to consider the nature, character and seriousness of any injury, discomfort or disfigurement. You must also consider their duration, as any award you make must cover the damages suffered by [plaintiff] since the accident, to the present time, and even into the future if you find that [plaintiff's] injury and its consequence have continued to the present time or can reasonably be expected to continue into the future. The law does not provide you with any table, schedule or formula by which a person's pain and suffering disability, impairment, loss of enjoyment of life may be measured in terms of money. The amount is left to your sound discretion. You are to use your discretion to attempt to make the plaintiff whole, so far as money can do so, based upon reason and sound judgment, without any passion, prejudice, bias or sympathy. You each know from your common experience the nature of pain and suffering, disability, impairment and loss of enjoyment of life and you also know the nature and function of money. The task of equating the two so as to arrive at a fair and reasonable award of damages requires a high order of human judgment. For this reason, the law can provide no better yardstick for your guidance than your own impartial judgment and experience. I do not see any reference to "enlightened conscience." If a jurisdiction has such a charge, I would like to see it. I appreciate that you may think "high degree of human judgment" and similar phrases is equivalent to "enlightened conscience", but I don't. Evidence can be produced by either side to aid the jury in their decision, whereas the idea of enlightened conscience suggests that the jury is somehow different in kind than other people. Aside 1: Negligent doesn't mean that you didn't mean to, negligent means that I can't prove that you had the mens rea of intent. Many businesses did and do engage in knowingly unsafe conduct as a cost of doing business. Consider the Learned Hand formula for the analysis of breach of duty in a negligence claim. http://en.wikipedia.org/wiki/United_States_v._Carroll_Towing_Co. Where the cost to protect (the burden) is less than the statistical likelihood of something happening times the cost of injury, if a defendant fails to protect, it is negligent. If you cap the cost of injury, you immediately lower the cost of burden at which negligence can be presumed to attach. In other words, fixed cost of injury benefits businesses engaged in risky conduct and hurts unwilling victims that will more regularly suffer injury and be entitled to less compensation. Aside 2: Jails and the criminal justice system are a public substitute for a private wrong. Increasingly (and on a very different topic) people are trying to change the justice system from addressing public wrongs to addressing the private victims and focusing much more on restitution than on punishment. If you did a historical survey of the criminal law, I think you'd find that the way we think of criminal justice is fairly new. Violating the king's peace (and the resultant criminal law given to America) was about trying to stop people from engaging in vigilantiasm and waring, not about the government actually caring to avenge private wrongs. The civil courts also existed to give a forum to publically resolve private dispute without resort to self help/enforcement. Aside 3: Workers compensation was a tradeoff made between politicians and business in the early 20th century. As a variety of affirmative defenses to negligence suits began to be overturned in the courts, businesses got very worried about the cost of doing business. Because employees voluntarily enter the employment relationship, a compromise position between employer and employee that limits the employers exposure and provides certain recovery for the employee seems far more fair and reasonable than any such legally enforced relationship between tortfeasor and unwilling victim.
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Benkei
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Posted 07/06/09 - 11:34 PM:	#8
Xzjoel, different question: how do you consider the negative impact of this approach leading to a "claims culture" that exists in the US? In the Netherlands it would be unheard of to sue for damages because a cup of coffee is hot and you spill it over your own hand. We like to assume you like your coffee hot but in the US people have successfully claimed damages. http://en.wikipedia.org/wiki/Liebeck_v._McDonald's_Restaurants Or if you dig a whole, put a fence around it and a warning sign and somebody still walks in; you still get sued. All in the hopes of those lovely, lovely millions. It is a classical example of a slippery slope. Where originally the award for emotional damages was very reasonable, nowadays it's a run-away train. Due to the very structure of Common Law and its strong dependency on precedents, lowering these awards is near to impossible. I am not against the award of emotional damages in light of the individual per se but I certainly do not believe it is a healthy approach from a sociological point of view.
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Posted 07/07/09 - 02:17 AM:	#9
I consider my work as "pain and suffering" for which I seek out compensation as wages for wasting my life serving the needs of others. So, I don't see a problem with it. However, it seems that the reward isn't based so much on pain and suffering as a value, as the value the product has to the other person. So, I would think it would be more fair to have a system where "pain and suffering" were replaced with "how much the other guy benefited from the action. McDonald's didn't benefit from hot coffee in the lap, in fact, it could potentially hurt sales, so where are the funds coming from? From people who accept the risk of doing something profoundly stupid.
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xzJoel
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Posted 07/07/09 - 05:23 AM:	#10
Benkei wrote: Xzjoel, different question: how do you consider the negative impact of this approach leading to a "claims culture" that exists in the US? I think the claims culture in the US has more to do with the manner in which legal expenses are distributed. Because there is often no downside to bringing suit (a $200 or thereabouts filing fee) and a general desire for businesses to settle, merely bringing a "nuisance suit" may result in recovery of expense plus some additional money. All most businesses have to look forward to in defending a law suit is certain legal expense and uncertain liability. Innocence is expensive and being found liable even more so. What people tend to forget is that compensatory damages COMPENSATE, not reward. You don't get compensatory damages for anything (even pain and suffering) unless you have been harmed and can show a connection between the harm and the damages sought. Where people are not suffering or in pain, the jury is capable of determining such and not awarding any recovery on that basis. You also have to remember that most people do not bring lawsuits without an attorney. Even though many people would besmirch the plaintiff's bar in the US, I think you'll find that most attorneys are honest people that will not bring spurious claims in hopes of a nuisance settlement. There are costs for the attorney in bringing a suit and potential exposure to discipline and fines for bringing unwarranted claims. It does not behoove most attorneys to act like idiots. (If you want to discuss how contingency fees work and how plaintiff's attorneys bearing the cost of funding litigation decreases the number of suits filed, we can do that in another thread.) It seems rather like overkill to try to abolish damages for pain and suffering where the real problem lies with other abuses of the system that use P&S damages as but one tool. I can imagine the poor widow (65) who loses her husband (70) of modest income to an act of negligence. His limited means and advanced age might give her tens of thousands of dollars in monetary damages (lost income). What then of the heartache of losing her husband of 40 years? What of the fact that she may very well be alone until she dies some 20 years later? Do you apply some multiplier (let's give her a conservative 3x) and send her home with $100,000 or so in exchange for her husband? Is that really compensation for her loss that was caused at the hands of the tortfeasor? Certainly $1,000,000,000.00 is not compensation for her loss either, but there is some point in between that a jury (based upon common sensibility and the evidence presented) can come to in order to do what they think is just. Benkei wrote: In the Netherlands it would be unheard of to sue for damages because a cup of coffee is hot and you spill it over your own hand. We like to assume you like your coffee hot but in the US people have successfully claimed damages. http://en.wikipedia.org/wiki/Liebeck_v._McDonald's_Restaurants People always like to talk about this case, but even a cursory read of the McDonald's case shows that the major damages were punitive and not compensatory. From the decision: IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Judgment is entered solely against McDonald's Corporation and to Plaintiff in the amount of $160,000.00 for compensatory damages, and $2,700,000.00 to Plaintiff for punitive damages. Benkei wrote: Or if you dig a whole, put a fence around it and a warning sign and somebody still walks in; you still get sued. All in the hopes of those lovely, lovely millions. I am not sure if you are referring to a particular case. If you are, please let me know and I will address it. As a general proposition, if there is no basis in law for a suit, an attorney will not bring it. If you want to discourage people from brining their own cases, you could try the European model of shifting the attorney's fees to the losing party. Benkei wrote: It is a classical example of a slippery slope. Where originally the award for emotional damages was very reasonable, nowadays it's a run-away train. Due to the very structure of Common Law and its strong dependency on precedents, lowering these awards is near to impossible. I am not against the award of emotional damages in light of the individual per se but I certainly do not believe it is a healthy approach from a sociological point of view. I can't imagine what is unhealthy from a sociological point of view. Someone hurts you, you are entitled to be compensated. Money is not a perfect replacement for all types of damage, but we reduce all types of damage to money and give a monetary award. This seems both practical and as fair as we can make it.
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