Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 10. Damages
Randall Bovbjerg and his co-authors proposes that pain and suffering damages be dealt with by
schedules or matrices that would provide fixed pain and suffering awards for particular classes of
injury:
[We propose] three alternative ways to “schedule” amounts allowable for pain and
suffering and other non-economic damages. Scheduling can provide rational
standards—heretofore unavailable—for valuation, thus improving the tort system’s
current approach, rather than abolishing or arbitrarily limiting nonpecuniary
damages. We propose that these models be legislatively implemented, although
some change might be accomplished by the judiciary alone, perhaps through a
state’s judicial conference. Dollar values for the schedules could be based on past
jury awards, or possibly on findings of the “value of life” research, with legislative
or judicial adjustments to either.
The three scheduling models discussed here are designed for ordinary cases of
bodily harm and mental distress. The first reform model creates a matrix of values
that would award fixed damage amounts according to the severity of injury and age
of the injured party. However constructed, the matrix’s values would be binding of
jury findings of nonpecuniary damages, although the possibility of unusually severe
or minor cases may call for ranges of values within the matrix, or some other
provision permitting special attention to “outliers.” The second proposal also gives
juries systematic information on appropriate awards based on past experience.
However, rather than a binding matrix of awards, it provides a small set of
paradigmatic injury “scenarios,” with associated dollar values. These values would
serve as nonbinding benchmarks for assessing the case at trial. A jury would be
free to award any amount, but the benchmarks would serve to guide their award and
review by trial and appellate judges. The third approach mandates fixed limits on
awards of non-economic damages, as many state legislatures have already done.
But we suggest replacing today’s dominant approach of placing a single arbitrary
cap on all non-pecuniary awards with a system of flexible floors and ceilings that
vary with injury severity and victim age. . . .
We prefer matrices or scenarios to a system of floors and caps, primarily because
they more comprehensively address the problems of variability and predictability in
damage awards. Floors and caps, alternatively, deal only with the problem of
extreme outliers, thus preventing excessive over- and under-valuation, but
maintaining broad jury discretion (and variability in outcomes) for awards within
the range. Whether matrices or scenarios are preferred depends primarily on how
much one thinks non-economic damages should be individualized, how much one
trusts juries to exercise discretion, and the importance one attaches to achieving
similar results in similar cases.
Regardless of the scheduling model adopted, the relative levels and absolute sizes
of allowances should be based on past award history, as modified and promulgated
by state legislatures and, possibly, judiciaries. (We also suggest a substantive
change to provide for non-economic loss in wrongful death.) The increase in values
over time should be controlled, so that longer-term predictability is maintained. Our
proposals are all fairer and more consistent with past results than the arbitrary flat
caps now frequently enacted by legislatures—but not infrequently invalidated by
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