Ch. 8: Damages

Golden Rule Argument

- to put the jury in the shoes of the plaintiff. o Defense will likely object to the plaintiff raising this argument, and the court will sustain the objection. i.e. a plaintiff's attorney cannot explicitly tell the jury to put themselves in the injured clients shoes.

What does a day in the life video need to be?

- video must be tasteful - Needs evidence as the foundation.

Total Offset Alternative

Some courts believe that it is simpler and fairer to simply declare the percentages a "total offset" and to neither increase the future damages for inflation nor decrease them to present value. (this is generally more plaintiff friendly)

When can you recover Hedonic Damages?

General Rule: Is you need to be conscious and aware. - Why is this the rule? the whole point of general damages is to say here, have some enjoyment coupons. if you are unconscious and unaware, the money wont do that for you.

Additur

When the court gives the defendant a choice of accepting an increase to the damage award, or else the court will grant plaintiffs motion for a new trial. (federal courts don't have this power)

True Rule

Where a dogs market value is ascertainable, the correct measure is the dogs "special or pecuniary value" (that is, actual value) - the economic value derived from its usefulness and services," not the value that is drawn from companionship or other non-commercial considerations.

Evidentiary Support for Future pain and suffering

Where there is objective evidence that, due to the physical nature of the plaintiffs injury, it is plainly apparent that she will likely suffer future pain and suffering, the plaintiff is not required to offer expert testimony to support such an award. However, if the injury is more subjective and less obvious, most courts will require an expert medical testimony to support an award of future pain and suffering

Per Diem Awards

Where you break down the total amount of general damages into one day so that the jury can inadvertently put themselves into the shoes of the plaintiff (without actually using the golden rule argument). The, "how much would you take per hour to have this condition?" • Plaintiffs love this, defendants hate it. • A good objection is that it over simplifies general damages. • Most courts, including Texas, allow the per diem argument.

Lost Earning Capacity

lost wages are easy to calculate if the injured party already has the job. But it becomes tricky when the injured does not have the position yet.

Inflation

most courts now recognize the need to account for inflation in order to fully compensate the plaintiff for his losses.

Why did the courts adopt failure to mitigate?

with the advent of comparative fault (either 50/50, or 49%) that the courts have decided to adopt failure to mitigate. This is because under the old common law, if the plaintiff was even 1% contributory negligent, then the plaintiff would have had no recovery, and that would be absurd.

Rational Basis Test

if there is a rational basis for a statute, then it will be upheld. It is only declared unconstitutional if it is irrational on its face. (low level of scrutiny).

Medical Expenses

Tortfeasors are required to pay for the medical expenses incurred in good faith for injuries caused by the tortfeasor's misconduct

Hedonic Damages

known as loss of the intrinsic joy of life or loss of enjoyment of life.

What are the two ways that a court may implement the doctrine of failure to mitigate damages?

1.) Damage Limiting Doctrine: (the traditional method) is where the jury is merely instructed in finding the actual damages to not include any sums that the plaintiff could have avoided by exercising reasonable care in responding to the injuries. 2.) Other courts, have chosen to consider a breach of the duty to exercise reasonable in minimizing harm to be of fault negligence and will apportion this fault and reduce damages post-verdict by judicial action.

To determine the reason-ability of punitive damages, what factors did the court in State Farm Mutual v. Campbell look at?

1.) Degree of reprehensibility 2.) The disparity between the actual or potential harm suffered by the plaintiff and the punitive damage award. 3.) The difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed by comparable cases.

In Texas, what are the three ways that you may be able to submit a punitive damage question to the jury?

1.) Malice 2.) Gross Negligent 3.) Fraud

Arguments against damage caps:

1.) Substantive due process arguments 2.) Equal protection arguments that state that the statutes violate the claimant's right to be treated the same as all other personal injury victims 3.) 7th amendment right to jury trial arguments which claim that by superimposing legislative determinations over the actual damages to which a claimant might have recovery, the statutes disregard the jury's function and render a portion of the jury's job moot.

what is the general ratio between special and general damages?

3:1, but this is not an actual rule. Just the standard that the court discussing in Donnellan v. First Student, Inc.

Although the USSC doesn't want a bright line rule for a ratio for punitive damages, what did they say was typically fair?

4:1 ratio.

Corporate Liability for Reckless Conduct

A corporation may be liable in punitive damages for gross negligence if: a.) The corporation itself commits the gross negligence. b.) The corp authorizes or ratifies an agents gross negligence or if it is grossly negligent in hiring an unfit agent. c.) Actions or inactions of a vice principal.

Pecuniary Loss

Allows damages for economic contributions the deceased would have made to the survivors had death not occurred and for the economic value of the services that deceased would have rendered to the survivors but for the death.

Special (economic) Damages

Are economic harms caused by the defendant's misconduct. (ex: lost wages or earning capacity, medical expenses, and property repairs)

What happens if the plaintiff cannot use the property for a significant period of time as a result of the defendants tort?

Courts will ususally permit recovery of a reasonable rental cost as a ways to determine the damages for the loss of the use of the item.

American Rule

Each side pays their own attorneys fees and costs. o• However, in Texas, we have ch 38, which says that in contract claims, if the plaintiff wins, defendant will have to pay attorneys fees and costs

Future Earnings Formula

Earnings without Injury - Anticipated earnings with injury. * Most courts allow speculation regarding change of job to increase earnings, if it can be proven.

Heirloom Exception

If it is an heirloom that was damaged or destroy, like a wedding veil, pistol, jewelry, hand-made bedspread and other items going back several generations. These have special meaning to the plaintiff, they have sentimental value. Can recover for the emotional impact (non-economic damages) for these items.

Subrogation Argument

In many instances, either by statute or contract with an insurance company, the insurance Co. gets to recover the amount of medical expenses from the judgment. The insurance company is basically standing in the shoes of the plaintiff, getting to recover their money. The insurance co. may receive a windfall in some collateral source rule claims.

How are damage caps substantially different than remittur?

In remittur a judge sits for the whole case and then reduces. Whereas caps are arbitrary, the legislature doesn't listen at all to the facts. Cap is for all medical malpractice.

Theory behind Wrongful Death Cause of Actions

Is the theory of compensating the individual beneficiary for the loss of the economic benefit which they might reasonably have expected to receive from the decedent in the form of support, services, or contributions during the remainder of the decedents lifetime if the decedent had not been killed.

Remittur

Is when the trial court advises the plaintiff that the plaintiff can either accept a reduction in the damages or else the trial court will grant a new trial. (all courts have this power) Generally, if the remittur isn't too great, the plaintiff will take it.

§74.303- Limitations on damages (when there is a death):

It doesn't matter if its one or multiple doctors, or 1 or multiple healthcare facilities. o (a) if there is a wrongful death the cap on all damages is $500,000. o (c) says section (a) doesn't apply to the amount of damages awarded on a healthcare liability claim for the expenses of necessary medical, hospital, and custodial care.

Why does Texas uphold the collateral source rule?

It is a policy decision. We want people to have insurance. Without it, the plaintiff would be in a position inferior to that of having bought no insurance, because his payment of premiums would have earned no benefit.

Examples of Special Damges

Lost wages, loss of earning capacity, lost profits, medical expenses, loss of fair market value, cost of repair, and cost of maintenance

What is the main purpose of compensating victims of torts?

Making them "whole" as much as money ever can.

Have you breach your duty of reasonable care if you don't have health insurance and are thus unable to seek medical care?

No, you have not breached your duty.

General (Non-economic) Damages- examples

Pain and suffering, emotional distress, disfigurement, and disability.

How do we determine past v. Future damages?

Past medical expense are any medical expenses that have been incurred at the time of the verdict. Future damages are anything after the verdict

Wrongful Death Cause of Action

Provides for recovery by certain statutory beneficiaries (typically the immediate family) to compensate for their losses associated with the death of their loved one; that is, a wrongful death claim covers the harm to other beginning at the moment of the decedents death. - The victim is the statutory Beneficiary (immediate family). - Wrongful death damages begin at the death of the deceased. - Loss of Consortium

Texas Approach to failure to mitigate damages

Texas is a modified % comparative fault jurisdiction. The approach to FTM is the damage limiting model.

To what extent does someone need to be cognitively aware to be awarded for special damages?

The court says when you are getting medical care, whether they are aware of it or not, they are still incurring, thus, you don't need to be aware to recover for special damages.

Survival Statutes

The decedent gets the cause of action, but is transferred to the estate. It provides recovery for damages suffered by the decedent from the time of the tort until his/her death. Such damages might include pain and suffering, medical expenses, and lost wages. - The claim survives for the benefit of the estate. - victim is the deceased, the person who brings the suit is the estate. - Damages collectible are given to the estate. - No future medical (they are dead). - funeral expenses may also be recovered here.

What is the standard of duty for mitigating damages?

The duty is that of reasonable care. I.e. What would the reasonably prudent person do in the same circumstances/scenario.

Failure to wear seat belt as a FTM defense

The majority does not allow the defense to introduce evidence that shows the defendant failed to wear their seat belt. This is because failing to wear a seat belt is as pre-tort, not a post-tort, and FTM is typically applied to post tort actions. - However, there is an emerging view (like Nabors Wells v. Romero) where the courts will allow failure to wear a seat belt as a failure to mitigate damages. (TX allows)

Discounting to Present Value

The projected interest made on investments must be allowed in reduction of capital lest it be claimed that the plaintiff is overcompensated. Courts do not require that future awards of general, non-economic damages be discounted to present value.

Texas collateral source rule

The statute that says when there are medical expenses being claimed, the amount of damages that can be sought is the amount the plaintiff has been charged (total charges) even if plaintiff doesn't pay it all.

Method for calculating Property Damages

The typical method of calculating this item of special damages is to use the difference between the market value of the property prior to the tort, and the market value after the tort.

Failure to Mitigate Damages

This doctrine imposes a post-tort duty upon the plaintiff to exercise reasonable care to treat or lessen the ultimate harm plaintiff suffers and for which plaintiff can expect to receive compensation from the tortfeasor. - It is sometimes called the "avoidable consequences rule"- it places an obligation on the victim to exercise reasonable care to reduce or "mitigate" her actual damages.

Loss of Filial Claim

This is only for the parents of a deceased child. Some Courts allow this. Others do not.

Non-pecuniary Damages

Those damages awarded to compensate an injured person for the physical and emotion consequences of the jury, such as pain and suffering and the loss of the ability to engage in certain activities

What is the main purpose of awarding punitive damages?

To punish/deter

General (Non-economic) Damages

are designed to compensate for non-economic harms- injuries for which there is no actual market value. Examples are: pain and suffering, emotional anguish, emotional distress, disfigurement, physical impairment or disability, loss of reputation, and loss of spousal or parental consortium. These are difficult to quantify in dollars and cents -They must be fair and reasonable. The test to see if they are fair and reasonable? if it "shocks the courts conscience," then it is not reasonable.

Who are considered vice principals?

corporate officers; those who have the authority to employ, direct, and discharge servants of the master; those engaged in the performance of nondelegable or absolute duties of the master; those to whom the master has confided the management of the whole or a department of a division of the business.

The Collateral Source Rule

forbids the reduction of the claimant's actual damages by virtue of the claimant's receipt of any benefit from a third party (e.g., a health insurance company) that offset the harms for which the claimant seeks recovery from the tortfeasor. o While this may seem like it would lead to a windfall for the plaintiff's, many courts still follow the rule. o Subrogation is often listed as one of the reasons for upholding the collateral source rule. o There is often a windfall in CSR cases, and a windfall usually ends up with the plaintiff, or their insurer. - Texas follows the collateral Source rule

Malicious conduct/malice

is activated by personal ill will toward plaintiff or that his acts were aggravated by oppression, insult, rudeness, or a wanton and reckless disregard for plaintiffs rights

why would most plaintiff prefer several line items on the damage award submission to the jury?

o Most plaintiffs would prefer the several line items. They prefer this so that there is no"sticker shock" and it helps the jury not forget any category. o Most court do break the lines down into several line items. o Legally, there is another reason why plaintiff would want the jury award broken down into line items. If, on appeal, the court finds one item isn't required, they can just remove the one item and thus a new trial would not be required. However, if it was one general line, they might be required to have a new trial, to determine new damages.

What factors do the jury consider when determining the amount of punitive damages to consider?

o The nature of the wrong o The character of the conduct involved; o The degree of culpability of the wrongdoer; o The situation and sensibilities of the parties concerned; o The extent to which such conduct offends a public sense of justice and propriety and o The net worth of the defendant.

Types of loss of consortium

parental, spousal, or child

Punitive Damages

punitive damage awards is considered "extraordinary" and is used only to provide additional punishment and deterrence for the egregious conduct which the defendant engaged.

Higher scrutiny

the South Dakota court doesn't use the rational basis test, they use much higher scrutiny. They look at the facts behind why there was a statute in the first place, it determines no because there is no insurance or tort crisis.

suffering v. the award for Hedonic damages

the court doesn't want double recovery. (i.e. to be awarded for things under more than one category). o So, most courts do not allow recovery for Hedonic damages as a separate category, but most courts will allow the plaintiff attorney to ask for loss of enjoyment of life award within the pain and suffering category.

Taxation of damages

under the current federal tax laws, awards of actual, compensatory damages for personal injury cases are not subject to federal income tax. However, judges can instruct the jury about that an the jury can take them into account.

Future Medical expenses

will almost always require expert testimony to provide that they will in "reasonable probability" be incurred in the future for the underlying condition

Why Actual, Compensatory Damages?

• Actual damages awards are designed to make the victim whole by compensating the victim for the harm that has been suffered (past damages) as of the time of trial and all damages likely to be suffered after the trial (future damages). • There are two types of actual damages: Special And General Damages

notes about general damages

• For future general damages, there is no reduction to present value applied. • Courts will look at other jury awards for similar injuries to determine if the jury verdict is "shocking"

Nominal Damages

• In name only: Where a defendant violates the rights of the plaintiff but actually causes no harm for which actual damage can be determined, it would seem obvious that the plaintiff cannot recover actual damages from the tortfeasor. But a court can award nominal damages for technical violates of rights. • In practice, sometimes a plaintiff will seek an award of nominal damages in order to be declared a "prevailing party" in light of a statute that awards attorney's fees to prevailing parties. • Sometimes, when nominal damages are awarded, a court may also apply punitive damages to the judgment. - No nominal damages for harmless intermeddling

§74.301. Limitations on Noneconomic Damages

• The only type of statutory limits for damages in Texas is for Medical Malpractice claims. • The main provisions limit the general damages for medical malpractice is for $250,000. (regardless of how many healthcare professionals are involved). • Special damages don't have any statutory limits in Texas. • This §74.301(a) only applies if the defendant is a human. Cap $250,000 • §74.301(b) is against the health care institution. Cap $250,000 o Thus, if you are suing a doctor and a healthcare institution, the cap would be $500,000. • What happens if you are torted by more than one healthcare facility, what is the cap? §74.301(c) says that the cap for multiple healthcare facilities is $500,000. Thus, if there were 3 hospitals and 3 doctors the cap would be $750,000. (a)+(c) o §74.301(a-c) no cap on special or punitive damages.

Day in the life video

• These videos kind of gets the jury to put themselves in the shoes of the client without saying to do so outright. • Both a day in the life video and per diem awards are used to help the jury award the plaintiff more money. • Most courts allow a day in the life videos as demonstrative evidence. • They are relevant to the jury's award of general damages. • Rule 403 says that even though some evidence is relevant, it might be unfairly prejudicial to the defendant. So, a court has discretion to allow or disallow certain types of evidence. (some videos go too far to pander to emotions.)