Can You Ask for a Specific Pain and Suffering Award?
One of the most difficult things that we ask jurors to do is to put a dollar value on the physical pain, emotional suffering, and/or personal misery experienced by the victims of personal injuries and other torts. While lost income or other monetary damages are rarely as precise as they seem, they are concretely calculable in a way that non-economic damages like pain and suffering simply are not.
It's important to understand why coming up with a pain and suffering damages number is difficult. Putting a dollar value on suffering is not hard in the way that multiplying a six-digit number in your head, walking a tightrope, or lulling a baby to sleep is hard. Those tasks are difficult and require skill, patience, and focus. Sometimes it is not clear how best to accomplish them. But once completed, everyone can agree that they’re completed. Success may be difficult to accomplish, but it’s easily distinguished from failure.
In contrast, putting a dollar value on pain and suffering is hard because there is profound disagreement in society about what a correct result looks like. There is no market to set prices for misery. People do not voluntarily accept crippling, life-altering injuries for any amount of cash. And in the United States, we spend shocking amounts of money to treat, medicate, talk-through, or otherwise manage the consequences of pain and suffering. Judged by this rubric, pain and suffering would seem to be worth a lot.
And yet, there are many who would set the value of all non-economic damages at zero. Sometimes this is said directly, mostly in tort reform literature. But often this opinion is expressed indirectly, in slightly pearl-clutching concerns about “excessive” verdicts and the “passion” or “emotion” of juries that deliver them. A good portion of this perspective arises from naked self-interest by businesses who seek to internalize profits and externalize the human consequences of their production. But some of it is rooted in genuine judicial skepticism about plaintiffs and the role of verdicts in remedying suffering and deterring misbehavior. When I was working a summer job while still in school, I had a coworker once tell me that their long term financial plan was to “try to get hit by a guy driving a BMW.” So even if rare and stupid, those people do genuinely exist.
There is no resolution or balancing these disparate points of view. They’re incompatible. They arise from different philosophies, different ways of valuing human welfare. But if you give a jury some vague instructions and don’t ask too many questions about how they came up with a number, you can paper over the philosophical disagreements and live to fight another day. But because the philosophical disagreement is still there, you will find profound – sometimes strident – disagreement among the courts about whether attorneys can ask for a specific pain and suffering award in closing.
Can you ask a jury for a specific pain and suffering award in closing? Well, it depends a great deal on where you are.
The overwhelming majority of state courts, [1] including the four largest states by population (California, Texas, Florida, and New York), permit plaintiff’s counsel to request a specific pain and suffering damages amount in closing argument. [2] In fact, this practice is so commonplace in many state courts that it would be considered highly unusual not to give the jury a specific figure. For example, in a symposium article on personal injury practice, one Texas judge described the “failure to propose specific amounts” as a “notable omission” that he sometimes sees from inexperienced counsel and would not recommend. [3]
But a few states go in a different direction, including Pennsylvania, New Jersey, and Massachusetts, where arguments about the amount of pain and suffering damages are explicitly prohibited. And the judges operating in those jurisdictions are equally certain that an attorney should not propose a specific damages figure for pain and suffering damages, indeed characterizing the practice as not merely “notable,” but “offensive and egregious.” [4]
The Federal Courts are also deeply divided. Two Circuits (the First and Third) prohibit attorneys from requesting specific damages for pain and suffering. And even they disagree, if only with respect to the emotional tenor of their rule. The Third Circuit calls requests for specific damages a “troublesome practice” and is somewhat strident in its opposition. [5] In contrast, the First Circuit is almost apologetic, noting that its blanket prohibition is “clearly out of step with the prevailing federal practice” [6]
Most of the remaining Circuits (The Second, Fourth, Fifth, Sixth, Seventh, Eighth, and Tenth) leave the matter to the discretion of the trial court. [7] The Second Circuit, however, puts its thumb slightly on the scale. In Consorti v. Armstrong World Indus., Inc., the Second Circuit, while making clear that trial judges had discretion to permit or prohibit arguments for specific pain and suffering damages, noted as dicta that “we wish to emphasize that specifying target amounts for the jury to award is disfavored.” [8]
Why? Because “such suggestions anchor the jurors' expectations of a fair award at a place set by counsel, rather than by the evidence.” It’s unclear what “evidence” the Second Circuit believes the jury can instead consult to precisely compute a pain and suffering award, but nevertheless it “encourage[s] trial judges to bar [attorney] recommendations.” [9]
Despite this guidance, individual trial courts within the Second Circuit go in a variety of directions. Some judges generally permit attorneys to request specific damages for pain and suffering. [10] Others do not. [11] Because the Second Circuit has articulated no legal standard governing the decision – no set of facts that would mediate in favor of the practice in one case but not another – the decision is largely a reflection of judging philosophy rather than a case specific inquiry. Federal law is not supposed to vary between individual rooms in a courthouse, and yet, in this case, it does.
What is the upshot? Know your court and know your judge! The difference between trying a case in state or federal court is often the difference between arguing for pain and suffering damages as a matter of course, and being categorically forbidden from doing so. And while it is always good practice to know a court’s individual rules, in a federal case where pain and suffering are at issue, it behooves you to also research your judge’s approach to damages as well.
[1] See John Campbell et al., Time is Money: An Empirical Assessment of Non-Economic Damages Arguments, 95 Wash. U. L. Rev. 1, 6 (2017).
[2] In New York, this is embodied in CPLR § 4016. In other states, the rule can be found in caselaw. See Beagle v. Vasold, 65 Cal. 2d 166, 172 (1966) (“It has long been a courtroom practice of attorneys in this state to tell the jury the total amount of damages the plaintiff seeks, and no questioning of the technique has come to our attention”.); Hernandez v. Baucum, 344 S.W.2d 498, 500 (Tex. Civ. App. 1961) (“The law recognizes that pain is a proper item for recovery; that it is susceptible only of an approximate monetary evaluation, that jurors may arrive at a figure from their common knowledge and sense of justice, and that counsel may suggest what they believe the evidence will support. “); Braddock v. Seaboard Air Line R. Co., 80 So. 2d 662 (Fla. 1955) (upholding verdict where counsel asked for specific amount of pain and suffering damages).
[3] The Honorable Timothy Sulak, If You’ve Never Lost a Trial, You Aren’t Trying Enough Cases: A Judge’s Observations on What Works and What Doesn’t in Personal Injury Trials, The Advocate (Texas) [Winter 2016].
[4] See Nelson v. Airco Welders Supply, 107 A.3d 146, 161 (Pa. Super 2014) (ordering new trial where attorney suggested a specific figure for pain and suffering on the grounds that “there are certain instances where the comments of counsel are so offensive or egregious that no curative instruction can adequately obliterate the taint.”); see also Weiss v. Goldfarb, 154 N.J. 468, 480, 713 A.2d 427, 433 (1998) (“our public policy has prohibited counsel in negligence cases from requesting a jury to return a damage award in a specific amount”).
[5] See Waldorf v. Shuta, 896 F.2d 723 744 (3d Cir. 1990) (describing it as a “troublesome practice” and holding that “the references by plaintiff's counsel in his closing remarks to a minimum dollar amount that plaintiff should be awarded for his pain and suffering could have irrationally inflated the damages award and, under the facts of this case, constituted reversible error.”
[6] Rodriguez v. Senor Frog's de la Isla, Inc., 642 F.3d 28, 38 n.3 (1st Cir. 2011) (“our outright ban is clearly out of step with the prevailing federal practice. The Second, Fourth, Fifth, Sixth, Seventh, Eighth, and Tenth Circuits leave it to district judges to decide whether and how lawyers may discuss pain-and-suffering damages with juries.”).
[7] Id.
[8] 72 F.3d 1003, 1016 (2d Cir. 1995).
[9] Id.
[10] See e.g., Castro v. Smith, Case No. 16 Civ. 8147, 2023 WL 9022789 (S.D.N.Y. Dec. 29, 2023).
[11] See e.g.,Gogol v. City of New York, Case No. 15 Civ. 5703, 2018 WL 4616047 (S.D.N.Y. Sept. 26, 2018).
