Pain and Suffering Damages at Mid-Twentieth Century: A Retrospective View of the Problem and the Legal Academy's First Responses

AuthorPhilip L. Merkel
PositionProfessor of Law, Western State University College of Law, Fullerton, California
Pages545-580

Page 545

Introduction

A major debate in contemporary American tort law concerns the award of pain and suffering damages in personal injury cases. The issue has attracted attention because of large jury verdicts, mainly in medical negligence and products liability cases.1 Health care providers, manufacturers, and insurers, united under the banner of tort reform, have called for limits on noneconomic damages, the most common being for pain and suffering.2 Many state legislatures have responded by setting maximum limits on noneconomic damages3. Some laws limitPage 546 noneconomic damages in medical negligence cases only,4 while others apply to various personal injury lawsuits.5 Currently, Congress is considering legislation to impose a national limit on noneconomic damages in medical negligence cases.6

The academic community has been very active in the debate over pain and suffering damages, producing numerous studies on the subject. Some scholars believe that pain and suffering damages should be abolished because they are not compensatory, the jury has no rational way to assess them, they are inherently subjective, and they encourage fraud.7 Another group would allow for pain and suffering damages but propose new ways of measuring or limiting them.8 Yet others believe that they are compensation for the victim's injured feelings and serve the interest of corrective justice.9

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Although pain and suffering damages are controversial today, the issue is not new. Debates on the subject commenced over fifty years ago.10 During the mid-twentieth century, when personal injury lawsuits were multiplying and pain and suffering awards were rising, law professors began viewing these damages as a discrete problem in negligence cases.11 Throughout the 1950s, they produced the first legal scholarship examining pain and suffering damages with a critical eye.12 Some professors proposed limits on pain and suffering awards,13 while others called for their elimination.14 The insights and ideas generated by these scholars laid the groundwork for present-day discussions of pain and suffering damages.

This Article revisits this period of transition in American tort law. The Article has four parts. Part I traces the development of the law governing pain and suffering damages. It shows how common law courts in the nineteenth century created the legal rules during a time when pain and suffering awards were not very numerous or large. The courts gave juries the power to compute these damages with little judicial guidance, evincing great faith in their ability to reach a fair result. The judicial standards of review reflected this faith, as jury verdicts could be overturned by the trial judge or the appellate court in exceptional cases only.

Part II focuses on the first four decades of the twentieth century, a time when the appellate courts expanded opportunities for recovering compensation for pain and suffering. The courts began recognizing the various types of physical pain and mental suffering that a personal injury victim might endure. Additionally, this Part shows how the appellate courts, at the urging of legal academicians who were influenced by developments in the behavioral sciences, steadily increased the availability of damages for mental injuries. The cases and scholarly literature paid little attention to how these damages would be quantified, the assumption being that the jury, guided by the usual pain and suffering instructions, would set them.

Part III examines the dramatic growth of personal injury litigation and the increases in pain and suffering awards after World War II. It discusses a variety of developments that accounted for this change, including the expansion of liability insurance for auto accidents, the rise of thePage 548 plaintiffs bar as a distinct segment of the legal profession, and the popular belief that accident victims should be fully compensated for losses.

Part IV shows how legal scholars in the 1950s began seeing pain and suffering damages as a discrete problem. This Part identifies the important scholarship on pain and suffering damages from the decade.15 These writings reveal a general dissatisfaction with the common law rules and a lack of confidence in the judiciary's ability to make reforms. The torts scholars who proposed changing the law governing pain and suffering damages expected that any meaningful results would come from the legislatures. Part IV also discusses the major proposals for change, which include limiting pain and suffering damages or abolishing them entirely in certain kinds of cases. It shows that some authors who favored broader compensation for the economic losses of accident victims also called for the elimination of pain and suffering damages because of the social cost.

The Article concludes by examining the 1950s scholarship in the context of present-day debates over pain and suffering damages. It reveals the effects of the early studies and proposals on subsequent scholarly discourse and the resulting legislative changes in pain and suffering law.

I Development of the Legal Principles Governing Pain and Suffering Damages

Pain and suffering damages have long been part of the personal injury victim's recovery.16 Early in the nineteenth century, courts began holding that pain and suffering damages were an element of compensatory damages.17 Although some appellate courts questioned these damages in the mid-nineteenth century, they were already well-established by this point.18 For other courts, these damages must not have been controversial because there is no debate over their appropriateness in the reportedPage 549 cases.19 By the century's end, pain and suffering damages were universally recognized as part of the plaintiffs award, a view reflected in the major legal treatises on the subject.20

During these formative years, the appellate courts established the basic rules governing pain and suffering damages, which, in the absence of change through legislation, still apply today. They include the jury's role in setting pain and suffering damages and the law that permits the courts to protect against unjustified or excessive verdicts.

A The Jury's Role in Calculating the Award for Pain and Suffering

At common law, the jury had the authority to award pain and suffering damages.21 This is not surprising because the jury traditionally determined damages.22 When the plaintiff was seeking pecuniary damages, such as for injury to property or medical expenses, the jury relied on marketplace equivalents to compute the amount.23 Pain and suffering damages posed a special problem, however, for there is no market for pain and suffering. Although these damages are compensatory, the courts recognized that market measures did not aid in setting them.24 In 1910, the California Supreme Court offered the following: "In truth the admeasurement of suffering in terms of money is a most clumsy device; but it is the best device which the law knows, and it is a device which the law will employPage 550 until some better is discovered."25 The jury was asked to put a dollar amount on a loss for which there is no measure, to quantify the unquantifiable.26 As an early California court stated, "[T]o ascertain what is a fair and just compensation ... is a judicial problem of difficult, if not impossible, solution."27

Due to the unascertainable nature of pain and suffering damages, the jury instructions on them have never been very instructive. The jury was given broad discretion to set an amount to compensate for the pain and suffering that the victim was reasonably certain to endure.28 The jury could take into account factors such as "the intensity and duration of the [plaintiff's] pain . . . ; the plaintiffs life expectancy; the age and physicalPage 551 condition of the plaintiff; the health, habits, and pursuits of the plaintiff;" the victim's temperament and ability to withstand shock; and "the inconvenience and annoyance" associated with the injury.29 When the plaintiff was maimed or disfigured, the plaintiff's appearance could influence the jury.30 Yet, placing a dollar figure on the loss was a daunting task, and the jury instructions gave little guidance.31 Juries could not compare the pre-accident and post-accident value of a person's life, make a simple calculation, and award the difference. For this reason, pain and suffering awards were necessarily subjective and unpredictable.32 As one critic stated:

The ultimate practical consequence of the absence of any certain method of evaluating pain and suffering is that in appraising the potential recovery in any personal injury case there exists a vast imponderable. No one, not even the experienced claim adjuster, can say with any reasonable degree of certainty what a jury is likely to do in awarding damages for pain and suffering.33

B Limited Judicial Review of...

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