Measuring damages for lost enjoyment of life: The view from the bench and the jury box.

Abstract

Civil jury instructions are inconsistent in defining what constitutes noneconomic damages, which may include pain, suffering, disability, disfigurement, and loss of enjoyment of life (LEL), among other injury sequelae. This inconsistency has been manifested recently in court decisions that have considered whether LEL should be treated as a separate element of noneconomic damages, distinct from pain and suffering. This paper reviews the case law on this issue and also describes a jury simulation experiment. Mock jurors awarded damages after they received instructions on noneconomic damages in which LEL was ( 1) not identified as a distinct element of damages; (2) defined as an element of damages distinct from pain and suffering, but participants awarded a single amount for noneconomic damages; or (3) defined as a distinct element of damages, and participants awarded separate amounts for LEL and pain and suffering. Instructions about LEL resulted in larger awards, but only when mock jurors also made a separate award for that element of damages.

Whither Suffering? The Potential Impact of Tort Reform on the Emotional and Existential Healing of Traumatically Injured Chronic Pain Patients

“…Conversely, opponents of limitations on noneconomic damages have opined that "... these so-called reforms are a scourge that creates a second harm to those who need compensation the most, the injured, and give a protection to those who deserve it the least, the injurer" (Harris 2009, p. 163). Although Poser and colleagues (Poser et al 2003) have stated that some degree of psychological damages in personal injury cases is "now almost universal", one can argue that "psychological damages" do not fully encompass the vast magnitude of "suffering" (Geistfeld 1995;Ubel and Lowenstein 2008). We posit that tort reform that limits compensation for pain and suffering has actually contributed to increased suffering for many personal injury victims, and consequently is not ethical (irrespective of its questionable legality.)…”

More than the sum of its parts? Itemizing impairment in civil cases

“…Prior research shows that rendering multiple damage awards can increase the size of the damage award. For example, Poser et al (2003) piecemealed LEL damage awards from a global pain and suffering damage award category. Participants in their study read a two page case summary of an automobile negligence case in which the driver injured a pedestrian.…”

“…Recently, courts have allowed jurors to focus on LEL as a separate award category rather than include them in the global pain and suffering category. Such courts argue that LEL and pain and suffering elements are fundamentally different, and thus awards for both elements are warranted (Abbinante v. O'Connell, 1996; American Law Reports, 1984/2000; Boan & Blackwell, 2001; Fantozzi v. Sandusky Cement Products, 1992; Poser, Bornstein, & McGorty, 2003; Thompson v. National Railroad Passenger Corp., 1980). Although a majority of courts allow for a separation of LEL from pain and suffering, other courts see little distinction between the two, and feel that separate awards for each may ultimately lead to higher damage awards via a duplication effect (Leiker v. Gafford, 1989; Loth v. Truck‐A‐Way Corp., 1998; Poser et al , 2003).…”

“…It is thus likely that focusing participants' attention on specific legal elements increased the saliency of those losses (Wiggins & Breckler, 1990), particularly when jurors rendered multiple damage awards (Poser et al , 2003). The question then is what happens when the focus is turned to several specific pain and suffering elements, including LEL, mental anguish, physical disability/impairment, and disfigurement?…”

“…If the piecemealed approach to separating pain and suffering damage award components continues, other specific injuries could receive similar scrutiny from jurors. As Poser et al (2003) found, exposing jurors to information about specific pain and suffering injuries may aid juror comprehension, but asking them to provide separate awards for each injury may also increase overall damage awards. Thus, the purpose of the current study is to further extend the findings of Poser et al to determine the impact of information about two distinct mental injuries (LEL and mental anguish) and two distinct physical injuries (disability/impairment and disfigurement) on non‐economic damage awards.…”