Obtaining Damages for Future Pain and Suffering

by Barry P. Goldberg, A Professional Law Corporation

Woodland Hills personal injury lawyer,Barry P. Goldberg, warns his clients that it is not automatic that a jury will award "future pain and suffering." In fact, juries today are tougher and tougher and look for reasons not to award all items of damage at trial. It takes an experienced trial lawyer, careful presentation of the evidence and compelling expert testimony to obtain an adequate jury award for future pain and suffering.

As with any significant injury, a jury is likely to find that the personal injury plaintiff will be reasonably certain to need medical care in the future as a result of injuries suffered in the subject accident or event. Often a well meaning jury will award damages for future medical expenses which are requested and proved by expert opinion. It is also a relatively simple proposition that juries will likely award damages of for past physical pain and suffering. However, more and more juries are failing to award damages for future pain and suffering. There may be many reasons for the jury's logic even though a seriously injured plaintiff will actually experience future pain and suffering.

Conventional wisdom says that a jury will struggle to figure out an appropriate award for past pain and suffering and that several jurors will reluctantly "go along" because there is no formula and it is a difficult number to assess. So, when it comes time to award "future" pain and suffering, these jurors put their foot down and convince a majority of the other jurors that it is impossible to calculate the value of pain and suffering that has not yet occurred.

When this happens---no award of future pain and suffering—plaintiff's trial lawyers argue that the verdict is inconsistent and void as a matter of law because the jury failed to provide any measure of damages for future pain and suffering despite concluding that the will be reasonably certain to need medical care in the future as a result of the subject accident. The case law is not so helpful.

"A special verdict is inconsistent if there is no possibility of reconciling its findings with each other. [Citation.] If a verdict appears inconsistent, a party adversely affected should request clarification, and the court should send the jury out again to resolve the inconsistency. [Citations.] If no party requests clarification or an inconsistency remains after the jury returns, the trial court must interpret the verdict in light of the jury instructions and the evidence and attempt to resolve the inconsistency." (See, Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 357–358; emphasis added.) The Court of Appeal will not reverse unless a verdict is "hopelessly ambiguous." (Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d 452, 457.)

Often, plaintiffs inadvertently waive any claim to challenge the supposedly inconsistent verdict by failing to request clarification before the jury was excused. (Bisnett v. Hollis (1962) 207 Cal.App.2d 142, 150.)

Even if the plaintiff properly preserves the issue for appeal, the Courts do not agree that the verdict is necessarily inconsistent. By the time the jury reaches its verdict, several years may have passed since the subject accident. If the jury awards a significant amount for past pain and suffering, the Courts will indulge the inference that no more pain and suffering will occur in the future.

In a recent unpublished decision, the Court held that even if a jury awarded damages for future medical expenses— even for a "pain management program," it is not "inconsistent" for the jury to award nothing for future pain and suffering. That Court argued that the jury could have reasonably concluded that the plaintiff would not endure pain and suffering in the future attributable to the subject accident, or it could have reasonably concluded that the pain management program would fully resolve any such pain and suffering.

To the extent that a plaintiff contends the damage award is insufficient as a matter of law, the Courts will generally not disturb a jury's award of damages as compensation for personal injuries unless an abuse of discretion appears, or unless the award is inadequate based upon a fair consideration of the evidence. (Haskins v. Holmes (1967) 252 Cal.App.2d 580, 584.) There is no guarantee that an injured plaintiff is entitled to general damages for pain and suffering. (Cf. Miller v. San Diego Gas & Elec. Co. (1963) 212 Cal.App.2d 555, 558.) A verdict limited to the amount of medical expenses incurred or for a lesser amount is not necessarily inadequate as a matter of law. (Id.) Regrettably, this is a circumstance that we are seeing more and more of in Los Angeles Superior Courts.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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