Document Type

Article

Publication Title

DePaul Law Review

Abstract

In a line of relatively recent cases, the U.S. Supreme Court has held that a tort award of punitive damages must satisfy the procedural and substantive requirements of the Due Process Clause of the U.S. Constitution. Of all damage types, the Court so far has expressly applied due process requirements only to punitive damages. But as Justices Scalia and Thomas have argued, "[I]f the Court is correct, it must be that every claim that a state jury's award of compensatory damages is 'unreasonable' (because not supported by the evidence) amounts to an assertion of a constitutional injury.'' This claim is most compelling with respect to pain-and-suffering damages. As others have concluded, these damages appear to be particularly problematic as a matter of due process. Part II provides further reasons for concluding that pain-and-suffering damages are posing a constitutional problem. In the Court's most recent case evaluating the constitutionality of a punitive damages award, it justified the due process inquiry by relying upon a set of constitutional concerns regarding punitive damages. These constitutional concerns all apply to pain-and-suffering damages. Part III identifies the source of the constitutional problem. Judges routinely instruct jurors that there is no way to determine pain-and-suffering damages other than by reference to what is just or fair. When juries determine damages on this basis, the tort award most plausibly involves a normative or value judgment concerning the amount of money that "can symbolize public respect for rights and public recognition of the transgressor's fault by requiring something important to be given up on one side and received on the other, even if there is no equivalence of value possible." The damages award redresses the rights-violation without representing any "equivalence of value" because the plaintiff's right to physical security is not commensurate with or directly comparable to money. The individual right to bodily integrity is simply not fungible with money. This conception of the tort right explains why jury instructions routinely state that there is no way to equate the injury or rights-violation with money. The concept, however, also implies that the damages award for the rights-violation involves an excessive amount of juror discretion in violation of due process. Part IV discusses the potential impact of due process on tort awards for pain and suffering. The current procedure for determining these damages could be constitutionally defective, requiring wholesale change. Even if the current procedure does not produce per se constitutional violations, the jury's determination of damages does not plausibly involve a finding of fact, and so the damages award should be subject to de novo judicial review for cases in which the defendant challenges the award as being excessive in violation of substantive due process. In evaluating the constitutionality of a punitive damages award, judges must apply a set of factors identified by the Court. Such an inquiry might also be required for the de novo review of pain-and- suffering damages. Jury awards of pain-and-suffering damages are not inherently vulnerable to these constitutional restrictions, however. Part V explains why the plaintiff's tort right provides a constitutionally sound method for determining pain-and-suffering damages. As a corollary of the tort right, the defendant owes a duty of care to the plaintiff. To determine the substantive content of the duty-the safety precautions required of the defendant-the standard of care must compare the cost of precaution to the injuries threatened by the risky conduct. To make this comparison, the standard of care must monetize the pain-and-suffering injury. A well-established methodology exists for making such a determination. The resultant monetary measure of the injury does not represent a "value" of the injury or the tort right, but merely represents the safety demands that this particular injury imposes on the duty-holder. This monetary measure also provides a good basis for the damages award. To violate the plaintiff's right, the defendant must have breached the duty of care in a manner that caused injury to the plaintiff. The rights-violation links the duty of care to the injury, making it defensible to formulate the damages remedy in these terms. Redress of the rights-violation therefore can depend upon the monetary measure of the injury that is employed within the standard of care. Not only is this method an appropriate way to protect the plaintiff's tort right, it also involves a finding of fact by the jury. When based on this method, pain-and-suffering damages are secure from the attacks of due process.

First Page

331

Volume

55

Publication Date

2006

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