Improving Jury Decisionmaking: Damages for Pain and Suffering
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Description
This summary describes the general discussion following the panel presentation in terms of the issues addressed rather than the order in which the discussion proceeded. A number of participants questioned the premise that awards for pain and suffering reflect an unacceptable amount of variability for injuries of the same type. In their view, a comparative study that finds discrepancies across cases does not show that the system is irrational unless the comparison accounts for the individual characteristics in each case that are relevant to its outcome. Participants who felt that there is an undesirable degree of variability in these awards acknowledged that the categories currently used for comparison are too crude and imprecise to provide a definitive answer. One participant noted that the problem of variability in pain and suffering awards may in fact be more pronounced than depicted in the Aetna study. The study includes only awards after remittitur, and since remittitur reduces the verdict, there must be even more variability in awards made prior to remittitur. Another participant observed that it is an empirical question whether variability in pain and suffering awards reduces the likelihood of settlement. Consequently, it would be desirable to compare settlement rates for cases that involve such awards with cases that do not. This participant thought that perhaps insurance companies or claims adjusters would be able to provide such data. This participant then noted that in California, for cases involving a claim for pain and suffering damages, settlement negotiations typically proceed by taking medical costs, multiplying by three, and adding (for plaintiffs) or subtracting (for defendants) some amount to provide a settlement range. Another participant said that an insurance company used to rely on this approach in its settlement negotiations, but no longer does because it gives plaintiffs an incentive to overstate their medical costs. One participant thought that the current system for awarding pain and suffering promotes settlements. Defendants often do not have an incentive to settle and would rather fight a “paper war” in an attempt to overwhelm the plaintiff. By asking the right questions about how settlement negotiations are proceeding, judges can re-balance the system by emphasizing the possibility that the defendant faces substantial pain and suffering damages. For this reason, this participant concluded that the variability in pain and suffering awards may provide judges with an effective tool for expediting settlements.
Source Publication
Reforming the Civil Justice System
Source Editors/Authors
Larry D. Kramer
Publication Date
1996
Recommended Citation
Geistfeld, Mark A., "Improving Jury Decisionmaking: Damages for Pain and Suffering" (1996). Faculty Chapters. 721.
https://gretchen.law.nyu.edu/fac-chapt/721
