An exploration of "noneconomic" damages in civil jury awards.

• Author: Kritzer, Herbert M.
• Position: Introduction through III. Results A. Cook County Data, p.971- 999 - The Civil Jury as a Political Institution

TABLE OF CONTENTS INTRODUCTION I. PRIOR RESEARCH AND OUR FOCUS ON "NONECONOMIC" Damages A. The Challenge of Noneconomic Damages B. The Challenge of Assessing the Appropriate Level of Noneconomic Damages C. Extant Empirical Research on Noneconomic Damages II. DATA SOURCES AND ANALYTIC APPROACH A. Data B. Analytic Approach III. RESULTS A. Cook County Data B. Bureau of Justice Statistics Data C. RAND Jury Verdict Study Data SUMMARY AND CONCLUSION APPENDIX: INSURANCE CLAIM DATA A. Insurance Research Council Closed Claim Data B. Texas Department of Insurance Data C. Missouri Insurance Department Medical Malpractice Data INTRODUCTION

Despite controversy about its role in awarding damages in cases involving punitive damages and medical malpractice, the American civil jury remains a common institution for resolving tort claims and other types of disputes in all fifty states and in federal courts. (1) Not surprisingly, a substantial empirical literature consisting of archival studies, jury simulation experiments, and, in one important instance, records of the actual deliberations of Arizona civil juries, has attempted to learn about how civil juries perform the tasks assigned to them. In this Article, we address a relatively understudied aspect of personal injury awards by civil juries, namely compensatory awards. Specifically, we explore the relationship between so-called "noneconomic" components of compensatory awards and their economic components, a subject that Marshall Shapo among others has discussed as one of the most controversial subjects in tort law. (2) Although previous research, partially summarized infra, has explored the relationships between economic and noneconomic components of jury awards, it has been limited in both scope and empirical evidence. (3) Further exploration of this relationship seems appropriate to the theme of the present conference which seeks to place the American civil jury in its political context. (4)

1. PRIOR RESEARCH AND OUR FOCUS ON "NONECONOMIC" DAMAGES

   1. The Challenge of Noneconomic Damages

      Tort law provides monetary compensation for losses in personal injury cases that include not only concrete, tangible losses such as medical bills, property loss, and past and future lost income, but also for losses that are clearly tangible but ineffable in monetary terms. These include pain and suffering, loss of society, emotional distress, loss of consortium, disfigurement, loss of child-bearing capacity, loss of parental guidance, and loss of enjoyment of life, as well as other categories of loss. Along with the issue of punitive damages, (5) these latter components of damage awards, often summarized as "noneconomic" awards, or simply--and incorrectly--labeled as "pain and suffering," are among the most contentious issues related to the American civil jury. They play a significant role in attempts to limit awards in medical malpractice cases, (6) are a central target of so-called "tort reform" efforts, (7) and are often based on fallacious claims and distortions. (8) Not surprisingly, they are the subject of frequent legal commentary about the goals of tort law. (9)

      A sizeable body of empirical literature bearing on jury damage awards utilizes various research approaches, including systematic interviews with jurors following their verdicts, (10) analyses of actual jury deliberations, (11) simulation experiments with varying factors that might influence the verdict process, (12) and archival studies that draw upon verdict reports to compare the components of actual jury awards across an array of cases. (13)

      In this Article, we utilize archival data from multiple sources to attempt to shed more light on the noneconomic components of civil jury awards in personal injury cases. Pursuing this topic by systematically utilizing archival data is important for two reasons. The first reason lies in the nature of noneconomic damages. As many commentators have pointed out, by their very nature noneconomic damages are conceptually a contradiction in terms: they provide monetary compensation for an injury that is intangible in monetary terms. (14) A common claim is that juries do not have the competence to assess these damages because jurors are too often swayed by emotions and in particular do not have the perspective of comparable cases, thus, injecting randomness and unfairness into the tort system. (15)

   2. The Challenge of Assessing the Appropriate Level of Noneconomic Damages

      Critics claim that the noneconomic portion of awards is often much greater than the actual economic loss, suggesting that emotion rather than reason influences juries. (16) Yet, consider the following case of Lillian Walters, a thirty-two-year-old stay-at-home mother of four minor children. (17)

      In December 1979, Mrs. Walters's family physician discovered a lump on her neck, and after conducting some tests referred her to a surgeon. (18) The surgeon advised that Mrs. Walters have a portion of her thyroid gland removed due to its diseased condition. (19) The suggested surgery was relatively low risk and normally would result in a small scar. (20) A day after the surgery, while Mrs. Walters was still in the hospital, her condition deteriorated. Her head ballooned in size, she became blind, and she suffered severe respiratory distress. (21) Shortly after she was moved into intensive care, the pathology department advised the surgeon that a piece of esophagus tissue was attached to the thyroid specimen. (22) It was determined that the area of the surgery was now badly infected, (23) and Mrs. Walters was taken back to surgery where the surgeon reopened the wound, discovered a significant hole in the esophagus, determined that repair was not possible, and sewed the esophagus closed. (24) Initially Mrs. Walters could only be fed by a tube inserted into her stomach through the abdomen; she did regain her vision, and after numerous hospitalizations and surgeries, Mrs. Walters was left with a replacement esophagus fashioned from a portion of colon. (25) Although she was then able to consume food via her mouth, the replacement esophagus did not function like an actual esophagus. Mrs. Walters had great difficulty both swallowing and keeping food in her stomach. (26) Eating was painful, and she could not lie flat because food would come back up through the replacement esophagus. (27) Her condition was embarrassing and distasteful to people around her and made living a normal life impossible. (28) Her life expectancy was more than forty years, but no further medical treatment would improve her situation. (29) Because she did not work outside the home, (30) economic damages consisted entirely of past medical expenses, and those expenses totaled approximately $59,000. (31) What would be an appropriate amount for noneconomic damages in this case? Walters's lawyer asked for $4 million in total damages, (32) and the jury in the case awarded $2 million, (33) which meant that the noneconomic damages were about thirty-three times the economic damages. Was this excessive in this case, where the plaintiff experienced a severe, life-changing event with tangible consequences that she had to endure for the rest of her life? Was the compensation award unreasonable? (34)

      The Walters case partly reveals some of the conceptual problems that exist in thinking about noneconomic damages. Although often labeled by critics as merely pain and suffering, should her injury be labeled so simply? In fact, many state legislatures have defined additional elements of damages for which there is no clear dollar value, but the jury or judge translates the injury consequences into monetary terms. A sample of medical malpractice verdicts from the Cook County Jury Verdict Reporter helps to illustrate these issues.

      Araujo v. Leong involved an injury during birth causing hypoxic encephalopathy to deep structures in the brain and resulting in severe cerebral palsy and quadriplegia. (35) The jury award was $17,070,000, which consisted of $3 million in...