Proving Pain and Suffering: Which Expert Witnesses Can Help


Proving Pain and Suffering: Which Expert Witnesses Can Help

The primary purpose of a civil action is to compensate the plaintiff for any harm sustained by the defendant’s negligence. But proving that the defendant’s negligence caused the plaintiff’s injuries is only half the battle. In order to receive damages, the plaintiff’s loss needs to be quantified.

There are two types of damages: compensatory damages and punitive damages. Compensatory damages compensate the plaintiff for monies lost due to the injury, such as lost wages, medical expenses, or loss of future earnings. The idea behind compensatory damages is to place the injured party in the position that they would have originally been in but for the defendant’s conduct. On the other hand, punitive damages are non-economic damages that cannot be readily calculated and are not directly tied to a quantifiable loss. The pain and suffering of a plaintiff due to the defendant’s negligence is a prime example of non-economic damages.

Unlike medical bills or lost wages, the pain and suffering of a person cannot always be easily identified. Additionally, compensation for pain and suffering is not necessarily meant to make the person whole. That does not mean such damages are not warranted. To the contrary, pain and suffering constitutes an important component of damages calculations and is clearly allowable under tort law.

What is “Pain and Suffering”?

Generally, in the legal context, there are two types of pain and suffering that can stem from an injury – physical pain and mental anguish. Physical pain is connected to the pain of the actual injury, i.e., a chronic pinched nerve from a car accident. Mental pain and suffering refers to issues such as mental anguish and illness, emotional distress, psychological disorders, and loss of enjoyment of life, i.e., flashbacks from a serious car accident causing acute stress disorder or post-traumatic stress disorder every time the plaintiff attempts to drive.

The two types of pain and suffering are often intertwined. The physical pain from an injury, especially a permanent and/or severe injury such as paralysis or disfigurement, can understandably cause serious mental and emotional suffering. At the same time, mental stress can also manifest itself in physical symptoms such as sleep disturbances, heart palpitations, and a host of other illnesses.

The exact amount of pain experienced by a human being is a specific and individualized assessment based on biological, psychological, cognitive, and social factors. There is no simple guidelines chart; oftentimes, damages for pain and suffering are left for the juries to determine based on common sense and fairness.

What Kinds of Experts Can Establish Pain and Suffering?

Despite the subjectivity of what constitutes pain and suffering, expert witnesses are a critical aspect of establishing such damages. As a general matter, damages experts are critical in quantifying the value of the harm caused and determining the monetary amount that should be awarded to the plaintiff. In many cases, damages experts are used to explain the plaintiff’s losses by breaking down the amounts sought, such compensatory damages, lost earnings, medical expenses, as well as estimated future losses. However, damages experts are not just valuable for economic damages. They can be equally useful for establishing the monetary worth of pain and suffering.

First, the root cause of the pain should be established in order to determine its severity and permanency. Medical experts well versed in the relevant practice areas and treatment of the injuries at issue should be able to establish the present and future pain of the plaintiff. A qualified medical expert should be able to testify, to a reasonable degree of medical certainty, whether pain exists, to what extent, and for how long. Such testimony can help set the general parameters of the injury.

Secondly, pain management experts can be useful witnesses in order to establish not just plaintiff’s present and future pain but also the curative measures that plaintiff will need to undergo in order to manage it. A plaintiff that will need pain-relieving opioid medication or physical therapy for their entire life in an important factor to establish.

As to mental anguish, psychology experts can help explain the plaintiff’s psychological or emotional issues to a jury. Particularly because mental illness or suffering is an “unseen” pain, a psychologist or psychiatrist is extremely valuable in helping the jury understand the significance of such an injury.

How Much is Pain and Suffering Worth?

It is both common sense and judicial fairness that as the severity and permanency of an injury increases, so should the monetary amount for pain and suffering. It is easy to see how, as a result of a car accident, a paraplegic would receive more in damages than a person who suffered a broken (but fixable) bone. But that does not mean that the calculation of pain and suffering damages is a random shot in the dark.

Insurance adjusters, often the first line of defense in a tort action, calculate settlement offers by using the multiple method. This method takes the total of economic damages and multiplies it by a certain number in order to determine a fair amount for pain and suffering. For example, if a plaintiff suffers from injuries that resulted in a $5,000 medical bill and $2,000 in lost wages, her total economic damages would be $7,000. That total number of $7,000 may use a multiplier of 1 ($7,000) or perhaps 5 ($35,000) to determine the pain and suffering amount.

The actual number used as a multiplier is based on a number of factors. The injury itself is, of course, a predominant factors. Temporary injuries, such as bruising or other soft tissue injuries, will not yield a large multiplier like a more severe or permanent injury would. Likewise, a plaintiff that is partially liable for their own injuries decreases the chances of a high multiplier. Importantly, when calculating using the multiple method, the venue of the action is also considered. If the plaintiff filed suit in a venue that is known for high jury verdicts, the multiplier will be a higher number because the insurance adjuster will be more motivated to settle out of court.

Another method referred to as “per diem,” can be used to calculate damages. The per diem method places a value on each day that the plaintiff is recovering or suffering from the incident. For example, if a plaintiff is out of work for five days and takes that time to reach full medical improvement, the per diem amount would be something deemed reasonable in light of the circumstances. In such an example, if the amount is determined to be $100 per day, then the plaintiff would be awarded $500 in pain and suffering damages.

Overall, there are a variety of ways that pain and suffering damages can be established and calculated. Due to their subjective nature, it may be easy for a jury to run askew. That is why experts that can help calculate what seems like an unquantifiable issue are critical.

About The Author

Anjelica Cappellino, J.D. is an accomplished defense attorney and legal writer who has represented numerous federal criminal defendants in the Southern and Eastern Districts of New York.