GUESSING THE VALUE

By Donald F. Smith, Jr., Esquire

How does one place a value on pain and suffering?

That is the challenge we require of jurors contemplating a verdict in a personal injury case. Unfortunately, in Pennsylvania, an attorney is not permitted to argue for a specific dollar amount for noneconomic damages during closing argument.

When I closed to a jury, I struggled to give a monetary meaning to the pain suffered by my client without suggesting a figure or a formula. I am not alone. John J. Speicher, Esquire, a past president of our Bar Association, successful trial attorney for over 46 years, and esteemed story teller, told me “when arguing for pain and suffering damages, it felt like I had one arm tied behind my back.”

Therefore, an essay published in the October 2022 issue of the Pennsylvania Bar Association Quarterly caught my eye. Its title says it all: “Keep Them Guessing: Pennsylvania’s Prohibition on Counsel Attempting to Quantify Pain and Suffering Damages.”

The article, by Chad Pace, a PBA member living in Nevada, traces the history of the prohibition, provides a critical analysis, reviews the law in other states and suggests a future approach.

The prohibition dates back to 1893 when the Pennsylvania Supreme Court ruled in Himes v. Kiehl that an item of noneconomic damage “was essentially a matter to be determined upon all the evidence, and by the jury alone. The plaintiffs had no right to arbitrarily say that it was any fixed sum.”

The rule has been followed ever since, forcing plaintiff attorneys to attempt creativity. For example, the 2014 Superior Court decision in Nelson v. Airco Welders Supply involved claims under the Wrongful Death and Survival Acts. As part of his argument, counsel displayed the verdict sheet to the jury, noting the listing of the elements of noneconomic damages, seven under the Survival Act and another five under Wrongful Death.

Counsel then emphasized the parties had “agreed that the economic losses that you can accept equal $1 million. I repeat, $1 million, and that’s where you start at.

You start there.” He argued, “Each of those elements of damages starting at physical pain are worth infinitely more than that $1 million figure.” Continuing, counsel described the loss to the decedent’s wife and suggested “this number should be significant and substantial. This should be more so. Much more than this.”

The trial court had no problem with the argument, denying the defendant’s motion for a mistrial. The jury awarded a total of $12 million in noneconomic damages. On appeal, though, the Superior Court found counsel had “provided the jury with a formula to calculate damages and an amount to plug into that formula.” Thus, it held, “clearly, counsel’s remarks were inappropriate.” So much for creativity.

Attorney Speicher shared, “on multiple occasions, jurors came to me and said, ‘You did not tell us what you wanted for pain and suffering.’” See, they expect guidance.

He followed up with an interesting observation: “My best pain and suffering awards occurred when the jury obviously disliked the defendant or defendant’s counsel.” Thereby proving that the appellate courts have no clue as to what “evidence” the “impartial acting voice of the community” relies on without counsel’s help.

What have other states done?

According to Mr. Pace, New Jersey, by court rule, permits a request for “pain and suffering damages pursuant to a per diem formula.” In Delaware, the Supreme Court allows counsel to suggest various figures, considering it to be a “rhetorical argument” and not “a prohibited mathematical formula.” The courts in Virginia and North Carolina permit counsel to ask for a fixed dollar amount if it is supported by the evidence.

The author concludes Pennsylvania should allow an argument “that the noneconomic loss for a particular time period (often an hour or a day) can be quantified at a (usually small) monetary value,…[multiplying] the per diem figure out into the future.” I like it.

Gee whiz, counsel had not argued “arbitrarily” for “any fixed sum” as the Himes court found to be problematic. Suggesting a formula is as much an error as arguing a fixed sum. Recently, in 2021, the Superior Court cited prior case law for the proposition: “[N]oneconomic loss must be measured by experience rather than any mathematical formula…For this reason, the law entrusts jurors, as the impartial acting voice of the community, to quantify noneconomic loss and compensation.”

Entrust? By prohibiting advocacy providing guidance, can the jury be entrusted to do anything but guess?

Will our Supreme Court change course after 130 years and permit such an argument? After all, we are dealing with court precedent, not a court rule or a law. The Plaintiff’s attorney must roll the dice in a case, expend the money for a losing appeal to the Superior Court and then hope for allocator in the face of overwhelming, opposing precedent. Even if successful in having the appeal accepted, persuading a majority of seven skeptical justices is then required. Isn’t it easier to settle the case?

Yes, but our current Court is more progressive; now may be the time to seek change. Justice demands jurors be given the guidance they desire by unleashing the arm behind counsel’s back.

Mr. Smith is Executive Director Emeritus of the Berks County Bar Association.