Pain and Suffering Damages in Wrongful Death Cases: An Empirical Study

• Author: Han‐Wei Ho,Yun‐chien Chang,Martin T. Wells,Theodore Eisenberg
• DOI: http://doi.org/10.1111/jels.12067
• Published date: 01 March 2015
• Date: 01 March 2015

Pain and Suffering Damages in Wrongful

Death Cases: An Empirical Study

Yun-chien Chang, Theodore Eisenberg, Han-Wei Ho, and Martin T. Wells*

Most jurisdictions in the United States award pain and suffering damages to spouses of

victims in wrongful death cases. In several East Asian countries, spouses, parents, and

children of the victim can all demand pain and suffering damages. Despite the prevalence

of this type of damages, and the oft-enormous amount of compensation, there has been no

large-scale empirical study on how judges achieve the difficult task of assessing pain and

suffering damages. Using a unique data set containing hundreds of car accident cases

rendered by the court of first instance in Taiwan, with single-equation and structural-

equation models, we find the plaintiffs’ ad damnum has a statistically significant influence

on the court-adjudicated pain and suffering damages. That could be evidence for the

anchoring effect. Nevertheless, courts are very sensitive to the possibility of pushing defend-

ants into financial hardship. When defendants’ out-of-pocket payments of pecuniary

damages, divided by defendants’ income, are positive, this amount has a negative effect on

the amount of pain and suffering damages, whereas when they are negative (this could

happen because the amount of compulsory insurance payment had to be deducted), the

amount in absolute value has a positive effect. Not all next-of-kin received the same amount.

Spouses of the victim received more than other next-of-kin, and adult children received the

least among eligible relatives. Parents, however, tended to be awarded a high amount of pain

and suffering damages when they were the only familial group suing the defendant.

*Address correspondence to Yun-chien Chang, Associate Research Professor & Deputy Director of Center for

Empirical Legal Studies, Institutum Iurisprudentiae, Academia Sinica, Taiwan; email: kleiber@sinica.edu.tw.

Eisenberg was the late Henry Allen Mark Professor of Law and Adjunct Professor of Statistical Science, Cornell

University; Ho is Ph.D. in Statistics, National Cheng Chi University, Taiwan; Wells is Charles A. Alexander Professor

of Statistical Sciences, Cornell University.

A draft of this article was presented at a workshop at Meiji University Faculty of Law at Tokyo, Japan; at a lecture

at Joseph von Sonnenfels Center for the Study of Public Law and Economics at University of Vienna, Austria; at

Shanghai Jiao Tung University Faculty of Law at Shanghai, China; at the Law, Behavior, and Social Science Workshop

at the University of Illinois College of Law; at the 2014 Asian Law and Economics Association Annual Meeting at

Taipei, Taiwan; at the 2014 Conference on Empirical Legal Studies at Berkeley; and at the Empirical Legal Studies

Workshop Series at the Research Center for Humanities and Social Sciences, Academia Sinica. We are grateful for

helpful comments by referees at JELS, and for those from Sofia Amaral-Garcia, Ralph Brubaker, Wen Bu, Kong-pin

Chen, Shari Diamond, Michael Faure, Daniel Foote, Nuno Garoupa, Valerie Hans, Paul Heald, Takayuki II, Richard

Kaplan, Patrick Keenan, Bob Lawless, Chang-ching Lin, Ming-jen Lin, Xifen Lin, Jin-Long Liu, Daisuke Mori,

Masayuki Murayama, Shozo Ota, Chengxin Peng, Jennifer Robbennolt, Kyle Rozema, Masahiko Saeki, Tom Ulen,

Neil Vidmar, Louis Visscher, Wolfgang Weigel, Verity Winship, Yingying Wu, and other participants at the workshops.

Yueh Hsun Yang, Charline Jao, Yu-june Tseng, and Christine Yuan provided research assistance. Tsung Huien Li

provided valuable help in the initial stage of this article.

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Journal of Empirical Legal Studies

Volume 12, Issue 1, 128–160, March 2015

128

I. Introduction

Pain and suffering and other noneconomic damages awarded by courts have generated

much normative and policy debate in the United States (see, e.g., Leebron 1989; Croley &

Hanson 1995; Geistfeld 1995, 2005; McCaffery et al. 1995; Vidmar etal. 1998; Niemeyer

2004; Rabin 2005; Sharkey 2005; Avraham 2006; Sugarman 2006; Viscusi 2007) and else-

where (Karapanou & Visscher 2010; Flatscher-Thöni et al. 2013, 2014). In wrongful death

cases, most states in the United States award spouses of the dead victim pain and suffering

damages for loss of spousal consortium, and a minority of states allow pain and suffering

damages for loss of parental consortium (Bovbjerg et al. 1988:912; Epstein 1999:451–53;

Shapo 2010:486–87). Yet all existing empirical and experimental studies on pain and

suffering damages have focused on personal injury cases.1Therefore, empirical knowledge

regarding how judges or juries quantify the pain of losing a beloved family member is

lacking. This article fills in the gap by empirically examining a unique data set from Taiwan,

constructed by the authors, that contains information on pain and suffering compensation

for loss of parental, spousal, and child consortium, pecuniary damages, and plaintiffs’ and

defendants’ annual income, among others.

It is important to ascertain whether pain and suffering damages in wrongful death

cases follow a rational pattern. Eric A. Posner and Sunstein (2005:543) state that “[t]here is

every reason to believe that the resulting awards [damages for pain and suffering for the

distress and loss of companionship suffered by dependents or heirs of the dead tort victims]

have a high degree of arbitrariness” (emphasis added). Even Judge Posner (2011:319), who

generally believes in the efficiency of the common law, lists “the method of computing

damages in death cases” as one of the four common-law doctrines that may not have a sound

economic rationale. Moreover, noneconomic damages are a substantial fraction of all

damages (Bovbjerg et al. 1988; Viscusi 1988:207–08; Avraham 2006). Lack of a rational basis

for them would call into question about half or more of tort damages. Pain and suffering

damages also are an instance of unbounded damages, which generate positively skewed

award distributions (Kahneman et al. 1998; Guthrie et al. 2000), which in turn lead to

reform proposals (e.g., Kahneman et al. 1998). Chang et al. (2015), using another unique

data set from Taiwan regarding the pain and suffering compensation in personal injury

cases, find that career judges in Taiwan reasonably base many of their difficult decisions on

objective criteria, most notably the amount of medical costs and the level of injury. Com-

pared to awarding pain and suffering compensation in wrongful death cases, ascertaining

the amount for personal injury seems easy. In wrongful death cases, often no pecuniary

1For experimental studies on pain and suffering damages in personal injury cases, see Chapman and Bornstein

(1996), McCaffery et al. (1995), Avraham (2005), and Diamond et al. (1998). Empirical studies on pain and suffering

damages in personal injury cases do not always include death cases (Bovbjerg et al. 1988; Viscusi 1988; Vidmar et al.

1998; Sharkey 2005; Sugarman 2006; Kritzer et al. 2014). The studies (e.g., Leebron 1989) that include death cases

analyze compensation for pain and suffering between the time of injury and the time of death, not compensation for

survivors.

Pain and Suffering Damages in Wrongful Death Cases 129

damages (except funeral expenses) can be claimed,2and pecuniary damages are, at most,

indirectly related to the emotional distress of the plaintiffs, as the killed person (or his or her

estate) is not the suing party. Judicial decisionmakers are left with the personal character-

istics of the two parties and the dead victim. It is thus interesting to examine whether in such

situations pain and suffering damages for loss of spousal, parental, and children consortium

can be consistent or systematically correlated with certain facets of the cases.

From a comparative viewpoint, whether mourning over the deceased by the next-of-

kin can be compensated appears to exhibit cultural differences between Europe and Asia.

In a survey of tort laws in 10 European countries, Koch and Koziol (2003:429–30) find that

except in shocking cases, spouses and other relatives are not entitled to claim pain and

suffering compensation.3By contrast, in East Asian countries, such as Taiwan,4China,5

Japan,6and South Korea,7spouses, parents, and children of victims have explicitly recog-

nized rights of demanding pain and suffering damages. In the world spectrum of pain and

suffering damages, the United States is in the middle, as spouses are at least entitled to this

kind of nonpecuniary compensation. The findings of this empirical inquiry could shed light

on how judicial decisionmakers in the United States and East Asian countries may have (or

would have) quantified the emotional distress of close relatives.

Using randomly sampled car accident cases from Taiwan, we provide three analyses

of pain and suffering damages. First, we assess the effects of personal information about the

two parties and the victim on requested and awarded pain and suffering damages. We find

that high-income plaintiffs requested more pain and suffering damages, whereas victim’s

age had a negative impact on the awards each plaintiff received.

Second, most cases have multiple plaintiffs and thus we can examine patterns of

judicial behavior on both the “individual level” and the “case level.” Individual level in this

2In our first-round data, courts awarded reimbursement of funeral expenses in 35 percent of the observations, and

compensation for living expenses in 34 percent of the observations.

3Note that Belgium awards pain and suffering damages in wrongful death cases. Courts there use an “indicative” table

that contains a schedule of pain and suffering damages to determine the amount due to plaintiffs. Although the tables

are not mandatory, courts use them, and therefore most parties settle around the suggested amount. We thank Louis

Visscher and Michael Faure for bring this to our attention and providing their first-hand observation. The indicative

table in Dutch can be found at <http://www.ordeexpress.be/UserFiles/ArtikelDocumenten/Indicatieve_tabel

_2012.pdf>.

4Article 194 of Taiwan Civil Code.

5Although Article 20 of China’s Tort Law of 2009 only lays down a very general principle regarding pain and suffering

damages, the Supreme People’s Court, in one influential 2001 “judicial interpretation,” created rights of action for

survivors of the wrongfully killed victim. We were informed that court practices in China vary. In the Shanghai area,

for example, courts award flat pain and suffering damages, while in the Beijing area, a pain and suffering damages

cap was set but judges have discretion to determine the specific amount of such damages.

6Article 711 of Japan Civil Code. In Japan, the pain and suffering damages in wrongful death actions are determined

by formulas that are largely based on the role the deceased played in the family. See Ramseyer (forthcoming:Ch. 2)

for a detailed account.

7Article 752 of South Korea Civil Code.

130 Chang et al.