DAMAGES: Economic & Non-Economic Compensation for Injuries
Most of my practice involves representing those injured as a result of the negligent, reckless or intentional conduct of another. Once we get beyond the issue of legal liability for the conduct causing the harm, and establish that the injuries were caused as a result of that conduct we reach the issue of damages. In most tort cases that reach trial the issue of damages comes down to what amount a judge or jury determines is “fair, just and reasonable” to compensate for the injuries. Damage components include both economic damages and non-economic damages, and cover past damages as well as future damages that can be ascertained with reasonable probability. But what are economic and non-economic damages? And how do we go about proving those damages, especially future damages? Simply stated, economic damages are the tangible expenses that can be identified and calculated. They usually include property damage, medical expenses and lost wages. The expenses and losses incurred as of the time of trial are easily quantified and the property repair costs, medical bills and wage loss records introduced as evidence. The future medical expenses and impairment of future earning capacity can also be introduced as evidence by the testimony of treating physicians expressing opinions on the need and cost of future medical treatment, and economists calculating the loss of earnings over the injured party’s life expectancy.
Non-economic damages are more difficult to quantify. They are the intangible damages that result from the consequences of an injury, and include physical pain, mental and emotional suffering, loss of enjoyment of life’s activities, fear of future effects of an injury and the permanent nature of the injury itself. Again, these components of damages are recoverable for both the time from the date of injury to the date of trial (past non-economic damages) and the time of trial through the plaintiff’s probable life expectancy (future non-economic damages).
The measure of damages is uniquely left to the sound discretion of the trier of fact, either a judge in a court side trial, or a jury if either party elects to try the case in front of a jury. And while the economic components are easy to calculate, the non-economic damages are often a challenge as the guidance is simply to compensate the plaintiff for an amount that is deemed “fair, just and reasonable” given the evidence presented at trial. Assigning a dollar amount to damage elements that consist of pain, suffering, fears and similar intangibles is highly subjective, and can be influenced by any number of factors including the background, personal beliefs and biases of the individual judge or jurors. Convincing the trier of fact to award substantial amounts to my injured clients for these intangible damages has been one of the most difficult, but rewarding tasks I have faced as a trial lawyer.