Valuing Aches and Pains in Civil Lawsuits – Physical and Mental Pain and Suffering
How do you put a dollar amount on that alleged gnawing ache or lingering burning sensation someone has after being the victim of a defendant’s negligence? Is a multiple of a plaintiff’s medical expenses, a per diem amount, or some other type calculation most appropriate?
Iowa’s civil jury instructions recognize the unique character of noneconomic damages. The determination of these damages, which include physical and mental pain and suffering, loss of full mind and body, loss of future earning capacity, and loss of consortium, is a function of the jury. Estate of Pearson ex. rel. Latta v. Interstate Power and Light Co., 700 N.W.2d 333, 345 (Iowa 2005). Plaintiffs and defendants face considerable difficulty in attempting to determine the actual dollar amount for these noneconomic damages in a case, primarily because “damages for physical and mental pain and suffering cannot be measured by any exact or mathematical standard….” Id. at 347.
Physical pain and suffering includes bodily suffering, sensation, or discomfort. Brant v. Bockholt, 532 N.W.2d 801, 804 (Iowa 1995). Mental pain and suffering includes mental anguish, anxiety, embarrassment, loss of enjoyment of life, a feeling of uselessness, or other emotional distress. Id. Though there is no statutory or common law method for calculating these damages, the Iowa Supreme Court has refused to overturn a verdict based on a plaintiff’s use of a per diem rate for determining such damages. Miller v. Rohling, 720 N.W.2d 562, 570 (Iowa 2006).
In Estate of Pearson, the jury awarded $1,500,000 in pre-death pain and suffering for a 60 year old male who suffered severe burns over 83% of his body as a result of a natural gas explosion. The decedent survived for 17 hours following the explosion, ultimately passing away after electing “comfort care” over “aggressive care.” The same jury awarded $250,000 in pre-death pain and suffering for his wife, who died shortly after the explosion. The Iowa Supreme Court upheld the awards, focusing on the extreme pain the husband had endured during the 17 hours following the explosion. Though the wife’s cause of death was not determined, medical experts opined that she had either died from inhalation of smoke and toxic fumes, from going into shock as a result of her burn injuries, or a combination of both. The Court held that any of these manners of death would have been “terribly painful from a mental and physical standpoint.” Estate of Pearson, 700 N.W.2d at 347. Even though the wife may have survived only a minute or two after the explosion, $250,000 was not viewed as flagrantly excessive or inadequate.
In Abbott v. RJS Electronics, the Iowa Court of Appeals considered a number of factors in upholding a jury verdict for pain and suffering following a physical altercation between an employee and her employer. No. 05-1959, 2006 WL 2872632 at *3 (Iowa App. 2006). Though the employee suffered only a bruise in the altercation, the jury awarded $56,000 for past physical and mental pain and suffering, plus $10,000 for future physical and mental pain and suffering. The Court of Appeals considered the pain suffered by the plaintiff during the week it took for her bruise to heal, her depression and anxiety regarding her unemployment, reduced income, and lack of health insurance, her fear and anxiety due to her financial situation, and her feelings of hopelessness.
While many attorneys have historically valued for settlement noneconomic damages as a multiple of medical expenses in personal injury cases, an examination of recent Iowa jury verdicts indicates a wide variance in such. In one case, the jury awarded pain and suffering damages which were 353 times greater than the plaintiff’s past medical expenses ($100,000 in pain and suffering for $283.00 in medical expenses). In another, the jury awarded pain and suffering damages which represented just ten percent of the plaintiff’s medical expenses ($50.00 pain and suffering for $500.00 in medical expenses). Removing the three highest (35336%, 18045%, and 16667% of medical expenses) and three lowest (0%, 4%, and 7% of medical expenses) ratios revealed a range from 10% of medical expenses to 6780% of medical expenses. When removing the high and low outliers, the average award of physical and mental pain and suffering was 351% of past medical expenses; while the median amount was 109% of past medical expenses.
The considerable variance in jury awards highlights the difficult task of attempting to value an award of noneconomic damages. Though there are safeguards in place to protect against flagrantly excessive or inadequate awards, the Iowa courts are hesitant to displace a jury’s opinion just because it may not be palatable. Of course, this doesn’t necessarily make settling a case any easier but at least we know there is good reason to agree to disagree as there is no one-size-fits-all calculation for all cases.