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Damages in a Personal Injury Case, The Elements


In the last blog I touched on loss of consortium damages. As you would know from reading the last several blogs, I have been focusing on a case that was tried in the federal court before a judge. It was tried under what is called the Federal Tort Claims Act. The judge in this jury-waived case issued a detailed opinion, something we don’t see in a jury trial.

The plaintiffs alleged negligence, and indeed the judge found negligence against the service person who was in charge of a U.S. National Guard outing. I spoke about the amount the judge determined that would be awarded for parental loss of consortium but the judge, of course, made other damages determinations. Those were with respect to the injured thirteen-year-old and how he was damaged in terms of future medical expenses, loss of earning capacity and pain and suffering.

Because we are so often are involved in cases that are tried in the Superior Court of Massachusetts, the jury gets what is called a Special Verdict Form and we don’t have insight as to what influenced them. All we get to see is a check mark and a number that is the damage award, if in fact the jury awarded any damages. Here, because it was not a jury trial, the judge wrote a long opinion which explained, not only why he thought there was negligence, but provided amounts for the value of the loss of future medical expenses, the loss of earning capacity and finally the pain and suffering.

It is noteworthy to me that in the final page of the decision, the judge wrote very nicely that the injured boy is a “bright young man who has faced a difficult setback in his life”. The judge went on to say that the life may not follow its original plan, but with the appropriate care and treatment, the boy should have a happy and fulfilling life.

The judge described the purpose of the compensatory tort system. It awards money to make the person whole, if that is possible. Obviously, the person cannot be given back their physical or cognitive abilities. But deficits, medical expenses and loss of earning capacity have a value. How did the judge come to those determinations? What was significant to him? These are important questions for those of us who work exclusively in the personal injury field.

We put in evidence the medical expenses that were incurred and we put in the gross figure, not the net due after the payment of health insurance. But in this case, governed by the statute, only future medicals were allowed. The judge looked to the future psychiatric sessions, necessary for post-traumatic stress disorder, and attributed an amount for them. The judge also put a dollar amount on the future cognitive training.

Loss of earning capacity was determined by using a simple method that I have described in past blogs. He looked at jobs that the boy had wanted to pursue- policeman, firefighter- and relied on a vocational expert to say that those jobs won’t be available to this boy. (There is a concern in exposing this boy to any future head injuries.) Then, in using the vocational expert’s calculations, the judge looked to salaries available to candidates with an Associate’s Degree as opposed to ones with a high school diploma.

The loss of earnings inquiry in this case involved having testimony from an economist as well. I want to point out that such testimony isn’t always necessary to establish those damages. The key point to remember is that the plaintiff, or the person suing, cannot perform the range of jobs that he/she would have been able to perform if they weren’t afflicted with these medical issues.

The final aspect of damages to the boy involved his pain and suffering. The judge reviewed the whole record since the accident. He included in his damages calculation how the boy felt right after the accident; memory issues; cognitive issues; past seizures; an increased risk of future seizures; concentration difficulties; and embarrassment flowing from all of these deficits.

As I say to my clients, I wish that they weren’t injured. But in injury law, this is the approach -and it was well-outlined here by the judge- to making the client “whole.”

Feinberg & Alban, P.C. fervently protects your rights
  • The Boston firm of Feinberg & Alban, P.C. specializes its practice in the area of personal injury.

    The attorneys serve the entire state of Massachusetts in addition to affiliating with lawyers in other states to handle cases outside of Massachusetts.

  • $7.7 Million Award for Feinberg & Alban Client in Personal Injury Trial

    Boston Attorneys Win Highest Injury Verdict in Massachusetts in 2011 & 2012.

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