Citation

Geistfeld M. Calif. Law Rev. 1995; 83(3): 773-852.

Copyright

(Copyright © 1995, School of Jurisprudence of the University of California)

DOI

10.2307/3480865

PMID

unavailable

Abstract

At present, no well-defined legal standards exist for assessing tort damages for nonmonetary injuries such as pain and suffering. As a result, jury awards for pain and suffering vary widely for similar injuries. In response, many states have enacted legislative reforms that limit pain-and-suffering awards. Meanwhile, many tort-reform advocates call for eliminating pain-and-suffering damages altogether. This Article argues that pain-and-suffering awards are desirable and proposes a method for calculating nonmonetary injuries that could be implemented without resort to radical reform measures. After a thorough survey of the approaches used to compute pain-and-suffering damages and current reform proposals, the author demonstrates that full compensation is desirable since eliminating or reducing nonmonetary damage awards would create significant inefficiencies and inequities. Applying well-accepted economic principles, this Article recommends that juries assess damages from an ex ante perspective that asks how much a reasonable person would have paid to eliminate the risk that caused the pain-and-suffering injury. The author shows that this methodology is appropriate for all tort cases; that it would yield reasonably accurate results despite data limitations; and that it can and should be implemented within the current system. For these reasons, the ex ante full-compensation award is a dramatic improvement over the current approaches to calculating pain-and-suffering damages.