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PART 2 of 10: The economics of non-economic damages. The curious case of David Fitzgerald.

By Steve Lombardi

Here is why non-economic damages are economic.

What everyone refers to as pain and suffering damages have never been for compensating losses associated with pain and suffering. When you're injured your pain and suffering isn't lost but is increased. What a person loses is a life without the pain and suffering; a situation another has caused. It's the increase in pain/suffering that normal humans' experience that is supposed to be the measure of what is being awarded; but realistically it's about a loss of your quality of life, because there is no way of measuring pain and suffering. Juries' make an award based on a misery management factor estimate from their collective common sense. No expert comes before a jury with a pain or suffering meter or pain scale telling a jury that this person has a pain rating and here is what it is. In fact it's just the opposite; with each side making their pitch for how miserable the person is or is not. Not in the entire history of America has any expert witness been able to create a valid pain scale.

If that's true then why are juries allowed to award pain and suffering damages?

Simply put because we all know and the law recognizes that non-economic damages are about the quality of life a person will have following injury.

The categories of out-of-pocket expenses awarded are woefully inadequate to pay for all debts the injured person will incur in the future as a result of the accident. The law recognizes, but lately is walking away from, the need to provide some compensation for future expenses that can't be quantified.

To understand this you'll need to take a walk with me. Walk with me in the shoes of one David Fitzgerald from Texas. Mr. Fitzgerald is a good example because his injury is so clear cut in terms of future quality of life that when you stand in his shoes you can't help but appreciate how economic his non-economic damages really are. Tomorrow I'll take up the case of David Fitzgerald and how reducing his non-economic damages will affect his family's life. In the meantime you may want to read one of my previous posts about David.

Stepping on the Little Guy: Dallas worker loses all four limbs, is awarded $17.7 million; well, almost, but not quite.

Originally posted at InjuryBoard by Steve Lombardi

Full post as published by Des Moines Personal Injury Lawyer on May 19, 2009 (boomark / email).