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...