CHAPTER 18

• Jurisdiction: United States

CHAPTER 18 MAKING THE DAMAGES CLAIM IN CONVENTIONAL TORT CASES

If the plaintiff's case is successful at trial, then the jury can award a broad range of damages. A plaintiff can recover economic damages, which includes lost wages and medical expenses. A plaintiff can also recover non-economic damages, including awards for "pain and suffering." If the defendant's conduct was particularly egregious and if the jurisdiction allows for them, punitive damages may also be available.¹ For example, in 1998, the Supreme Court of Texas upheld punitive damage awards totaling $5.2 million in asbestos cases against Owens-Corning Fiberglass Corp.² Similarly, the U.S. Court of Appeals for the Ninth Circuit, applying Georgia law, upheld a $2 million punitive damage award in a failure to warn case involving an intravascular filter manufactured by Bard, Inc.³ But achieving these awards requires substantial commitments of professional time, energy, and funds for plaintiff's evidentiary showing.

To prove that a duty exists, generally one needs only to establish that there was a professional relationship between the healthcare provider and the plaintiff. In most jurisdictions, breach of duty must be established through testimony of a medical expert who practices in the same or similar specialty as the provider who administered the vaccine. Causation is generally established by a medical expert as well since knowledge of the mechanism of the injury is generally beyond the general knowledge of a jury. Temporary workers helping out at a temporary mass vaccination site should have received some training from the entity that is administering the delivery of vaccines for that community. Future courts will decide the exclusivity of the VICP remedies for mistakes in administering the VICP-covered childhood vaccines, and for COVID vaccines, will decide exclusivity of the narrow CICP compensation system.

Damages are proven through documents and the testimony of multiple people. In terms of economic damages (e.g., lost wages and medical expenses), receipts and pay stubs are generally all that is required in cases where the plaintiff has fully recovered. If, however, the plaintiff suffered a severe injury that will require ongoing care and/or resulted in lost future earning capacity, additional experts may be required to establish economic damages. These potential experts are discussed in detail below.

Can Your Client Afford This Litigation Battle?

With all the potential causes of actions...