Cooper, James Truman

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Volume 68 | Issue 2 Article 29February 1966Damages--The Per Diem Method of Arguing Painand SufferingJames Truman CooperWest Virginia University College of LawFollow this and additional works at: https://researchrepository.wvu.edu/wvlrPart of the Torts CommonsThis Case Comment is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been acceptedfor inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contactian.harmon@mail.wvu.edu.Recommended CitationJames T. Cooper, Damages--The Per Diem Method of Arguing Pain and Suffering, 68 W. Va. L. Rev. (1966).Available at: https://researchrepository.wvu.edu/wvlr/vol68/iss2/29CASE COMMENTSWith the increasing judicial review of police detection methodsevidenced by the search and seizure and confession cases, theseproblems of the undercover method of police detection probablywill receive more attention. Courts again will have to balance theinterest in effective law enforcement and the interest in a fair oppor-tunity for defense for the accused. The courts now seem less likelyto allow what Justice Roberts termed "the reprehensible methods"used by the undercover agents. Sorrels v. United States, 287 U.S.435, 453 (1932).Forrest Hansbury RolesDamages-The Per Diem Method of Arguing Pain and SufferingPs brought an action to recover damages for injuries received inan automobile accident caused by D's negligence. The district courtallowed Ps" counsel to use the per diem basis in his argument to re-cover damages for pain and suffering. In addition, charts were usedto demonstrate the per diem computations. The judgment for Pswas reversed on the ground that argument designed to mislead juryinto believing that proper award for pain and suffering was a matterof precise determination constituted reversible error. Johnson v.Colglazier, 348 F.2d 420 (5th Cir. 1965).The basic approach of the per diem method is to break down painand suffering into units of time. The total units are calculated fromP's expected life span, as computed from an annuity table. In in-stances where P is not expected to incur pain and suffering for theremainder of his lifetime, computations are based upon the expectedduration of discomfort.The majority in the principal case based its opinion on Botta v.B runner, 26 N.J. 82, 138 A.2d 713 (1958). The New Jersey courtheld that in using such argument P's counsel was basing figuresupon mere speculation without supporting evidence. Also, NewJersey courts forbid reference by counsel to the ad damnum clausein the complaint.West Virginia's Supreme Court of Appeals in Crum v. Ward,146 W.Va. 421, 122 S.E.2d 18 (1961), followed the New Jerseycourt by holding that counsers use of the per diem argument con-stituted reversible error. See 65 W. VA. L. REv. 237, 238 (1962).The controversy concerning use of the per diem method is generally1Cooper: Damages--The Per Diem Method of Arguing Pain and SufferingPublished by The Research Repository @ WVU, 1966WEST VIRGINIA LAW REVIEWfamiliar to other state courts. Pro-Botta decisions are listed inAnnot., 60 A.L.R.2d 1331, 1339-44 (1958). A list of cases favorableto the per diem method may be found in the instant case at pp.428-29. The holding in the principal case represents the majorityview of the courts today.The Botta decision gives the jury no guidelines for determiningdamages for pain and suffering. Typically, the court instructs thejury to return a reasonable sum for pain and suffering, but givesno guidelines other than the jury's common sense and sound judg-ment. Phillips, Botta in Focus, TRLj LAw. GUYME 69, 78 (1962).Without any criterion to evaluate damages for pain and suffering ithardly can be said that the jury properly can weigh elementalfactors in arriving at their decision.Some advocates claim that use of per diem has led to excessiveverdicts. However, it is not uncommon for appellate courts to findverdicts excessive in cases where the per diem method is not used.In the latter cases the jury's only basis for formulating their verdictis conscience and common sense. In one case a $300,000 judgmentwas entered for P. Of this sum $207,000 represented an award forpain and suffering. Upon appeal this sum was held excessive.Loftin v. Wilson, 67 So. 2d 185, 190 (Fla. 1953). A Missouri casefurther illustrates this problem. The jury returned a verdict for Pin the amount of $68,000. By remittitur the trial court reduced theverdict to $48,000. Upon appeal this amount was further reducedto $38,000. Beard v. Ry. Express Agency, Inc., 323 S.W.2d 732, 746(Mo. 1959). Thus, there is evidence to support the proposition thata jury working by conscience and common sense alone may returnexcessive verdicts.The typical unaided juror is uncertain as to what would be aproper verdict. As reported in the article by Phillips, supra at 80-81,a poll was conducted of jurors to determine their reasoning inreaching a sum for pain and suffering. One juror said that he gaveP the amount of his bills because he was not told how much Psuffered in terms of money. Another said that he was never injuredand did not know what to give. The opponents of the per diemmethod claim that such method leads to speculation. It is apparentthat jurors would be speculating as to the worth of pain andsuffering if they did not have knowledge of the compensablefactors of which pain and suffering are comprised.[Vol. 682West Virginia Law Review, Vol. 68, Iss. 2 [1966], Art. 29https://researchrepository.wvu.edu/wvlr/vol68/iss2/29CASE COMMENTSAnti-per diem advocates claim there is no market place for painand suffering. The West Virginia court in following the Bottadecision stated that there is no measure by which pain and suffer-ing can be calculated, and any effort to attach a price tag theretomust be lost in emotion, fancy and speculation. Crum v. Ward,supra at 429, 123 S.E.2d at 23. This proposition was rebuffedduring a panel discussion at the Eighteenth Annual Law Instituteof the University of Tennessee College of Law and the KnoxvilleBar Association. A panelist, Mr. Francis H. Hare, states that thereare situations in life when pain and suffering are put on one sideof the scale and money on the other. The following illustrationwas used. Before modem treatments were perfected, there werevery few effective anaesthetics. Thus, many people died in anguishand suffering. Today there are anaesthetics which reduce or com-pletely counteract pain and suffering. To get the benefit of suchdrugs, money is required. For example, a dentist may charge $3for a shot of novacaine which brings temporary relief of pain.Suppose a person suffers from arthritic pain and the cost of themedicine to relieve the pain is $10 per day. It is reasonable toassume that such pain is incurable and will torment the person forthe rest of his natural life. The amount of money required toalleviate the pain over his remaining lifetime easily could beascertained by the per diem method. Mr. Hare further stated thatthe courtroom was the only place where he had ever seen the factdenied that freedom from pain and suffering was worth large sumsof money. 25 TENN. L. REv. 220, 227-230 (1958). Thus, onemethod of computing damages for pain and suffering would beto calculate in dollars that sum which is the cost of medicine ortreatment to alleviate it.The per diem method has been attacked by the argument thatit is a mathematical formula which gives the jury the illusion ofcertainty. Botta v. Brunner, supra. However, a true mathematicalformula is exact and subject to no variation. There is no illusion ofcertainty in a mathematical formula. Obviously, the per diemmethod is not a true mathematical formula. It does not give aspecific sum of money, but serves as a valuable guideline for thejury. To say that use of per diem gives to a jury an illusion ofcertainty is to insult their intelligence by implying that theystupidly misconstrue an attorney's illustration as a mathematicalformula. Phillips, supra at 83-84.1966]3Cooper: Damages--The Per Diem Method of Arguing Pain and SufferingPublished by The Research Repository @ WVU, 1966WEST VIRGINIA LAW REVIEWIn some states, including West Virginia, counsel may discuss thetotal sum asked for, but may not mention processes through whichthe jury might reason to obtain that amount. Johnson v. Brown,75 Nev. 437, 345 P.2d 754 (1959); 64 W. VA. L. REv., supra.The purpose of counsel's argument should be to provide a reason-able means by which the jury can arrive at a lump-sum figure. Todo this effectively, counsel should be able to state either what thefigure ought to be or which factors would legitimately enable thejury to fix a specified or general figure. The statement of a lumpsum should be no more permissive than the statement of a sumbased upon a per diem basis. The whole is equal to the sum ofits parts, and frequently an analysis or synthesis of individual ele-ments leads to a more thorough understanding of the compositewhole.Advocates of the anti-per diem method claim that because thereis no evidentiary basis for converting pain and suffering intomonetary terms, allowing counsel to suggest the amount of theaward would transcend the evidence. 12 RUTGEmS L. Rv. 522(1958). No well defined limits exist which confine an advocate inhis argument. Counsel is normally allowed to draw fair andreasonable inferences from the evidence. 53 AM. Jmi. Trial § 463(1945). To say that a verdict must be consistent with the evidenceis to indicate that such verdict must be inferable from it. Becausethe inference drawn by the jury results in a specific sum of money,it is evident that a lawyer should be allowed to comment on suchinferences from evidence. 12 RuTGERs L. REv., supra. Normally,if seriously injured, P will testify that he endures pain each andevery day at all conscious times. D's counsel will attempt to narrowthe time for pain and suffering, and the inevitable result is to in-directly provide proof of pain on a fixed, time-segmented basis.Phillips, supra at 84. This time-segmented basis for pain and suffer-ing which has been developed from evidence is easily adaptableto the per diem method. If so, the jury would be given a reason-able guideline upon which to base their verdict.Defense counsel have voiced wide disapproval of the per diemmethod. Ratner v. Arrington, 111 So. 2d 82, 88 (Fla. 1959). How-ever, the defense may make advantageous use of the per diemmethod of computing damages for pain and suffering. The defensecould thus persuade a jury that P is requesting an excessivesum. Phillips, supra at 86. Counsel is free to use any argument[Vol. 684West Virginia Law Review, Vol. 68, Iss. 2 [1966], Art. 29https://researchrepository.wvu.edu/wvlr/vol68/iss2/29CASE COMMENTSbased upon inferences from evidence. Thus, the art of advocacywould play its rightful part in presenting a reasonable guidelineto the jury.None of the pro-Botta arguments are adequate to refute the valueof the per diem method of ascertaining damages for pain and suf-fering. The instant case held that use of the per diem approach incomputing damages for pain and suffering was reversible erroreven though the jury's verdict was not per se excessive. JudgeBrown in dissenting said, "... . if the evil feared is excessive verdicts,then the cure ought to be directed against the product, not thepractice." Excessive verdicts may be cured by a trial judge'sproper use of discretion in preventing unreasonable argumentsbased on the per diem approach. The court's instructions to thejury should clarify the fact that the per diem argument by counselwas merely for illustrative purposes and not evidence of a sumcertain. The use of the per diem method in West Virginia wouldbe of valuable assistance to juries and would take the formulationof a verdict for pain and suffering from the realm of speculation.James Truman CooperLibel and Slander-The Innocent Construction RuleAs an employee of the defendant corporation, P was responsiblefor calculating the cordage of wood shipped to the corporation millin another city. His figures compared favorably with those of themill for a period of five years. Suddenly, for some inexplicablereason, an unusual discrepancy persisted. As a consequence P wasdischarged. At a meeting of some corporation employees, D madereference to the trouble involving P and linked it with anotherproblem involving inventory shortage where an employee had beendismissed under a strong suspicion of stealing. Although D main-tained that his intent was only to charge P with negligence or in-efficiency, witnesses who knew the facts concerning the inventoryshortage inferred that D's statement was an accusation that P wasguilty of stealing pulpwood. In the slander action brought by Pagainst D and the corporation, the trial court denied D's motionfor judgment notwithstanding the verdict. Held, affirmed. Wherewords allegedly slanderous may be given either an innocent or aslanderous interpretation, the jury must determine the sense in1966]5Cooper: Damages--The Per Diem Method of Arguing Pain and SufferingPublished by The Research Repository @ WVU, 1966

Damages--The Per Diem Method of Arguing Pain and Suffering

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Damages--The Per Diem Method of Arguing Pain and Suffering

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