37 Pages Posted: 3 Sep 2007
This Note focuses on the per diem method used by plaintiffs' attorneys to inflate noneconomic damage awards for their clients in the majority of jurisdictions that accept the technique. Under the per diem theory, a plaintiff argues that his noneconomic loss for a particular time period (often an hour or a day) can be quantified at a (usually small) monetary value. This amount is then multiplied by the number of hours or days that the plaintiff has been injured and will be injured in the future. For example, at trial, a plaintiff's attorney may suggest to a jury that the plaintiff's injury will cause a great deal of pain and suffering, but ask for a mere twenty-five dollars a day in noneconomic damages. If the plaintiff has a remaining life expectancy of thirty-five years, this seemingly insignificant amount quickly climbs to well over $300,000.
My piece provides a theoretical justification for why a plaintiff's use of the per diem method to compute future pain and suffering damages cannot be justified under any reasonable theory. The debate over the per diem technique has not changed significantly over the past forty years. During this same time period, nothing less than a revolution has occurred in the understanding of pain and pain management therapy in medical and psychological fields. However, these advances have not been incorporated into the debate over the per diem method. This Note analyzes and introduces the cognitive-behavioral treatment (CBT) model of pain to the legal literature with the hope of supplying a theoretical foundation for why the per diem argument should be impermissible in the many jurisdictions that permit such a method. The basic flaw of the per diem technique is that it improperly assumes a constant dollar unit for future pain and suffering without discounting for either future advances in pain management therapy or an individual's future and likely ability to psychologically and physically cope with chronic pain.
Keywords: pain and suffering, damages, noneconomic, tort reform
Suggested Citation: Suggested Citation
Totaro, Martin V., Modernizing the Critique of Per Diem Pain and Suffering Damages. Virginia Law Review, Vol. 92, No. 2, 2006. Available at SSRN: https://ssrn.com/abstract=1011003