Damages

Question 1

Name the three basic types of damages and explain the purpose for each one

Answer 1

Nominal - to vindicate the P’s rights
Compensatory - financial equivalent of loss / to restore P back to his rightful position (i.e. make him whole again)
Punitive - to punish and deter

Question 2

What is the standard for getting a remittitur?

Answer 2

The amount of damages that the jury awarded exceeds the highest amount they reasonably could have come up with based on the evidence (i.e. the jury award is grossly excessive and shocks the courts conscience).

Question 3

Medical Monitoring (for calculating damages on future medical harms) - Compensatory Damages

Answer 3

1. P has to prove that they’re at significant risk (more likely than not that I’m going to get this disease as a result of my exposure)
2. Disease is capable of early detection
3. Once we detect it early, there’s something that can be done to minimize the risk of harm

Question 4

Value of Property - Compensatory

Answer 4

General rule is that damages equal the market value of the good at the time and place of the loss if the good was destroyed (converted). If not destroyed, use rental value at the time of use or diminution in value.

Question 5

Describe the three different methods that can be used (depending on the jurisdiction) to calculate general compensatory damages for property that fluctuates in value (i.e., stock). - Compensatory

Answer 5

1. Time of loss theory – Plaintiff recovers the market value of the good at the time and place of the loss.
2. Rule of highest intermediate value – Plaintiff recovers damages based on the highest value the goods have reached during the period from the time of the wrong until the time of trial (or the date Plaintiff files suit).
3. Highest replacement value rule (aka New York Rule) – Plaintiff recovers the highest value the goods have reached between the time Plaintiff learns of the loss and a reasonable time frame within which the goods could have been replaced on the market. The judge determines what a reasonable time frame is.

Question 6

What factors does the court consider when determining whether or not a P suffering from a permanent personal injury failed to mitigate his/her damages? - Personal Injury

Answer 6

1. Risk (most important)
2. Probability of Success
3. Money or Effort
4. Pain (in some courts)
5. Public Policy

Question 7

What is the common law standard for determining if punitive damages are appropriate?

Answer 7

Common law malice – ill will, bad motive

Question 8

List the factors courts sometimes use to determine if the standard for punitive damages has been met.

Answer 8

1. Manufacturer’s awareness of the danger, awareness of the magnitude of the danger, awareness of a feasible alternative,
2. Extent to which defendants are subject to federal safety regulation,
3. Amount of time that has passed since the actions occurred.
4. Nature and duration of, and reasons for, manufacturer’s failure to act appropriately to discover or reduce the danger,
5. How great was the danger that the defendant exposed the public to?
6. Extent to which manufacturer purposely created the danger,
7. Probability that damages might be awarded against defendant in other cases,
8. Cost or feasibility of reducing that danger,

Question 9

List the three guideposts used to determine if a punitive damages award is grossly excessive, thus violating the defendant’s right to due process.

Answer 9

1. Reprehensibility,
2. Ratio between compensatory damages and punitive damages: Multipliers < 10 are more likely to comport with due process,
3. Compare and contrast the punitive damages award with civil penalties in similar cases.

Question 10

What must a P prove as a prerequisite to obtaining pain and suffering damages? - Survival Claim

Answer 10

Consciousness

Question 11

Explain the three methods used to calculate a beneficiary’s pecuniary losses in a wrongful death claim. *Please note that which method is used depends on the jurisdiction. - Wrongful Death

Answer 11

1. Loss to dependents – pecuniary losses are measured by the financial support the decedent was giving the beneficiary prior to death (i.e., value of bills paid and services rendered).
2. Loss to the estate – pecuniary losses are based on what the decedent would have earned in a normal lifetime (had he not prematurely died) minus what he would have spent to maintain himself.
3. Lost inheritance – hybrid of loss to dependents and loss to the estate measures.

You can recover burial and funeral costs under all 3