Pain and suffering in product liability cases: Systematic compensation or capricious awards?

Abstract

Victims of product accidents suffer a variety of potential losses to their welfare. Their income may drop, in some cases permanently. Medical expenses may run into the hundreds of thousands of dollars. In addition, there is a fundamental loss in welfare associated with the adverse health effects resulting from the accident. The “pain and suffering” designation is usually used to refer to these nonmonetary losses of the accident victim. Court awards to accident victims address each of these loss components. For the financial component of losses, the objective of the compensation is to restore the victim to “a position substantially equivalent in a pecuniary way to that which he would have occupied had no tort been committed.“’ The subsequent calculation of medical costs and lost wages losses is straightforward, as the losses are directly measurable and readily quantifiable. Although future growth rates of wages and medical costs are uncertain, there is a substantial body of empirical evidence and economic theory to assist in making such judgments. Thus, the criteria for compensation and the calculation of the appropriate level of compensation are reasonably well defined. Matters are quite different in the case of pain and suffering awards. This compensation is “intended to give to the injured person some pecuniary return for what he has suffered or is likely to suffer. There is no scale by which the detriment caused by suffering can be measured and hence there can be only a rough correspondence between the amount awarded as damages and the extent of the suffering.“’ Although pain and suffering represents a legitimate component of compensation, there is no well-specified measure of what it is or how much of the welfare loss it is intended to replace. The most that legal scholars have offered are somewhat negative guidelines that indicate what pain and suffering is not. Thus, it is generally recognized that the appropriate pain and suffering award is not the market value of a certain loss of this type.3 One should not, for example, pose the question in terms of how much the accident victim would require to accept the certainty of a particular loss. such as hemiplegia.4 The most widely used set, in terms of quantitative guidelines, is the approach suggested by Melvin Belli, who urges plaintiffs’ lawyers to ask the jury to assess the pain and suffering for a small time interval (e.g.. a day) and then to scale up this number proportionally with the total duration of the pain and suffering to