TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Monday, May 29, 2006

Compensating Tort Victims

Interesting post at the University of Chicago Law School Faculty Blog (via the new Mass Tort Report) discussing Daniel Gilbert's Stumbling on Happiness

The post's basic concept, based on Gilbert's research indicating that non-disabled people underestimate the happiness of disabled people, is that non-disabled jurors may overcompensate via hedonic damages tort victims who have become disabled.

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It is certainly possible that in some cases, a disability might actually precipitate an increase in happiness. But we should be very, very cautious about empirical work purporting to establish that. For instance, in discussing his hypothetical juror study, Picker doesn't explicitly consider the possible tendency of jurors having suffered injuries similar to the victim's to *undercompensate* the victim for reasons involving envy or denial. ("I'm coping perfectly fine with *my* injury without the benefit of any damage award; why should *this* victim be entitled to more?")

Posted by: Peter Nordberg | May 29, 2006 12:03:14 PM

Indeed. I'd probably go farther and seek caution in any effort that infers a real effort at precision by juries in evaluating hedonic damages with precision *except* in the cases like those you describe, where a juror has personal knowledge of a similar harm. I expect there's some research on such things, to whatever extent jury research can replicate the conduct of real jurors (anyone?).

Just my guess without seeing such research: I would imagine that the amount awarded for hedonic damages may have as much to do with the perceived badness of the defendant's conduct as anything else, except for a very general correlation between the extent of harm and the amount of damages.

Posted by: Bill Childs | May 29, 2006 12:48:45 PM

The evidence I've seen shows a definite outcome bias: the plaintiff has suffered especially grievous injuries, and therefore someone must be at fault for those injuries. (We see this fallacy regularly in discussions of the McDonald's coffee case, where supporters of the verdict regularly point out "But Stella Liebeck was really injured." What does that have to do with whether McDonald's is at fault?) Remarkably, even medical professionals are more likely to find negligence, ceteris paribus, when the patient has suffered a major, rather than a minor, injury.

Posted by: Ted | May 30, 2006 5:28:24 AM

I think my thought is a little bit different - though I think you're right on the subject you address, Ted. My thinking is that once the jury has concluded that there was negligence (probably often via the mechanism you describe), the amount of non-economic damages may be driven as much by punishing the defendant as anything else, especially post-State Farm, since the incentive is obviously to drive up the compensatory verdict as much as possible to support a large punitives verdict.

As an example, in class I use a transcript of a closing argument in which the plaintiffs' attorney expressly tied the suggested amount of non-economic harm to the sales per month of the drug in question of the defendant drug company. Obviously improper argument in the realm of compensatory damages, but I suspect that tying -- and the jury's conclusions on the bad behavior of the defendant (whether or not that behavior is actually connected to the harm to the plaintiff -- may have a substantial role in calculating non-economic harm whether or not the lawyers suggest it.

Posted by: Bill Childs | May 30, 2006 6:39:25 AM

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