Damages Flashcards
Pecuniary Damages Definition
Compensatory damages provided to a victim who suffered actual harm
Legal Standard for Pecuniary Damages
A plaintiff may recover PD if the plaintiff proves “by a reasonable certainty” that a future consequence would have occurred or will occur.
- "Reasonable certainty" is identical to preponderance of the evidence
- Courts must base damage awards on substantial evidence and not mere speculation
- Damages are to "make the plaintiff whole"
Examples of Pecuniary Damages (Expenses)
- Past Medical Care
- Discounting to Present Value Awards for Future Damages
- The Plaintiff’s Future Lost Wages
- The Plaintiff’s Future Medical and Related Expenses
Factors to Discounting Present Value
2 Factors
(1) Must take into account the time-value of money
o That is, the fact that money today can be invested to earn a return
(2) Must consider the effects of inflation
o The investment % is based on what can be earned with the safest available investments
Non-Pecuniary Damages - Pain and Suffering
Calva-Cerqueira v. United States
- Guy suffered pain, emotional distress, disfigurement, deformity, inconvenience, and the inability to secure paid-employment
- He was awarded $5,000,000
“Anchoring effect” - Juries are more swayed by awards amounts based on actual damages than pain and suffering
Comparators
Judges often use (lower) court cases when deciding damage awards, specifically for pain and suffering
Damage Multipliers - Non-Pecuniary
The larger the medical costs, the larger the pain and suffering multiplier
o Small costs = 1.5x to 3x
o Large costs = 3x to 5x
Non-Pecuniary - Loss of Enjoyment of Life
You must be (somewhat) cognitively aware to recover loss of enjoyment of life
LOEOL is not separate from Pain and Suffering in most jurisdictions
o LOEOL is sometimes referred to as “hedonic” damages
Punitive Damages In General
Punitive Damages are permitted on evidence of malice
o Intentional and deliberate wrongdoing by the defendant
o Mere negligence and/or recklessness is not enough to show malice
The courts are split when deciding what shows malice
o “Willful violation of the law” is insufficient to show malice in one case (drunk-driving)
o A “conscious disregard for the safety of others” may constitute malice in another (drunk-driving)
Standard for awarding Punitive Damages
Conduct must (typically) be outrageous in nature - Similar to IIED cases
o Wealth of defendant(s) is often considered when awarding punitive damages
o Employers are rarely held liable for punitive damages for the actions of their employeesPunitive Damages - Constitutional Limitations
Extremely excessive punitive damage awards violate Due Process
o $1,000,000 in Pecuniary Damages v. $145,000,000 in Punitive Damages
The three guideposts to awarding punitive damages
(1) the degree of reprehensibility of the defendant’s misconduct
(2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award
(3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases
Damage Caps and Tort Reform - Overview
While some states put a hard-dollar cap on punitive damages, most states use a multiplier of a victim’s compensatory (pecuniary) damages
o Tennessee’s Damages Cap: Noneconomic damages: (1) $750,000; (2) $1 mil. for “catastrophic” injuries (spinal cord, amputation, etc.); (3) intentional torts – no cap
o Non-economic damages - medmal. products liability cases
Pro-Tort Reform Arguments
o Decrease frivolous litigation that hurts businesses, reduces quality of healthcare, and deters new products and medical advancements
Anti-Tort Reform Arguments
o Damage caps make the courts less flexible to help compensate victims
o Punitive damages can be used to offset plaintiff’s litigation costs
