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

Witt & Tani, TCPI 10. Damages
Fourteenth Amendment in Weinberger v. Weisenfeld, 420 U.S. 636 (1975) (striking down the
different treatment of widows and widowers under the Social Security Act as a violation of the
Equal Protection Clause of the Fourteenth Amendment). For more on this theme, see Witt, From
Loss of Services to Loss of Support, supra.
The Death Case Paradox
Bizarrely, in tort cases, killing a plaintiff can be far cheaper for the defendant than injuring
the plaintiff severely. In McDougald v. Garber, 73 N.Y.2d 246 (1989) above, the initial damages
awarded by the jury were $9.7 million, of which $1 million was for conscious pain and suffering
and over $2 million was for ongoing custodial and nursing care. If Mrs. McDougald had died
during the operation, neither of those elements of the damages would have been awarded—and
there are no additional categories of damages that would have been added instead.
Given the incredibly high cost of a lifetime of intensive medical care and nursing services,
the pecuniary damages associated with severe injury can dwarf the wrongful death claims. Is this
structure justified because it takes into account the societal costs of caring for people with severe
impairments, or absurd because it creates perverse incentives for tortfeasors? If you wanted to
“solve” the death case paradox, how would you fix it?
B. Damages in Practice
So far, our discussion of torts has largely focused on only a few actors: a plaintiff, a defendant, a
judge. In practice, actually hammering out a settlement of damages involves many more players with
unique interests and perspectives: the plaintiff’s lawyer, the insurance carriers for the defendant and the
plaintiff, the jury, and others. The dynamics among this larger cast of characters shape the reality of the
torts system in interesting and surprising ways.
1. Plaintiffs’ Lawyers and the Contingency Fee
In practice, tort damages are mediated heavily by the contingency fee: a fee for legal services paid
as a percentage (usually around one-third) of total damages the plaintiff receives. On the one hand, some
argue that the contingency fee is an essential way to provide legal services to clients who do not have the
cash on hand to pay a lawyer—especially after suffering an injury that may have caused high medical
expenses and unemployment. On the other hand, the contingency fee has been blamed for spiraling tort
costs and concentrating excessive power in the hands of plaintiffs’ lawyers.
Richard Posner lays out the argument for contingency fee as follows:
Suppose a person has a claim of $100,000 and a 50 percent probability of
vindicating it if he has a good lawyer. The expected value of the claim is $50,000
and would justify him expending up to that amount in lawyer’s fees to protect the
asset. . . . But suppose the claim is his only asset. Ordinarily this would be no
problem; one can borrow a substantial sum against an asset as collateral. But it is
not always possible to borrow against a legal claim. Banks and other lending
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