When Pennsylvanians are seriously injured or their loved ones die, our citizens turn to attorneys for answers and solutions. Pennsylvania common law guarantees our citizenry a basic right to recover damages for both personal injuries and wrongful death. These very broad civil rights allow injured victims every opportunity to obtain full and fair compensation. Yet, as it turns out, that doesn’t always happen. While fair recovery often depends on the facts of a case, attorneys too often neglect some avenues of recovery or choose a methodology to present their client’s claim that misses the mark in maximizing recovery.

Compensatory damages are characterized as “tangible” and “intangible.” Tangible damages account for past and future medical expenses, past and future loss of income (earnings, profits, etc.) and other mathematically determinable losses. Intangible damages include past and future compensation for the pain and suffering, disability, disfigurement, loss of bodily function, loss of consortium, love, affection, tutelage, companionship, guidance and the loss of life’s pleasures our clients and their loved ones endure. The framework for preparation of the case in the pretrial phase, at mediation or at trial, must embrace the legal parameters of each claim and the emotional conditions our clients have been forced to endure.

Wrongful Death and Survival Action Claims

Pennsylvania law provides for two causes of action when someone dies: a wrongful death claim and a survival action. The purpose of providing both actions is to give and preserve to the parties damaged a complete remedy and opportunity to recover the complete loss sustained. The survival action is intended to benefit the decedent’s estate and its purpose is to prevent the tortfeasor’s liability from ending upon the injured person’s death. The major components of recovery under the survival action are the value of the future income losses to the estate and the value of the conscious pain and suffering prior to death. The wrongful death action is intended to provide an appropriate remedy for the tangible and intangible losses suffered by the decedent’s heirs. The economic measure of the loss in a wrongful death action is composed of two components: (1) the loss to the survivors as measured by the economic value of the benefit that the heirs would have reasonably expected to receive and (2) the value of their intangible losses.

Calculating Future Losses

For future medical expenses and income losses, an economist employs case-specific and statistical data to determine a rate of growth for wages and medical expenses, and then employs a statistical estimate for a plaintiff’s or decedent’s work life and/or life expectancy to derive a gross figure for each. Issues that arise and offer litigants an opportunity to exercise imaginative and effective advocacy in obtaining fair compensation often relate to future losses for a minor plaintiff, someone who was employed in the home, someone not yet employed or who had not yet experienced a well-defined income stream. Additional challenges relate to the predictability of future medically related costs, including how to prove these expected costs. Once again, the application of the law to the facts of the case — particularly in jury trials — is to assure yourself that the credibility of your claim is not compromised by presenting evidence of future losses that are not believable. In each case, imaginative advocacy must be cautiously evaluated because of the risk that a jury will decide that the plaintiffs are overreaching.

Lawyers need to decide not just what damages can and should be pursued but also how to present the testimony that supports these claims to maximize recovery and minimize effective cross-examination or jury nullification — because of a negative reaction to your evidence.

Preparing A Compelling Case For Award of Damages

Antoine de Saint-Exupery said, “As for the future, your task is not to foresee it, but to enable it.” A trial lawyer’s job is to understand what her client has gone through in the past and fully grasp what can be predicted about the client’s future tribulations. Then, selecting the appropriate witnesses and narrative, we must convincingly prove how a catastrophically injured client or how the family of a deceased loved one will, in the future, endure significant financial and emotional losses that warrant an appropriate award.

• Direct costs include expenditures for medical services, mobility aids and devices, special equipment, physical therapy, rehabilitation, training, counseling services, costs of transportation, costs of environmental modifications and the cost of personal assistance.

• Indirect costs refer to the value of potential output that is lost because of the reduction or elimination of work or other activity because of the victim’s disability. Thus, there may be a reduction in actual hours that a family member remains productive in the work-world or in the reduction in his or her work output. This economic loss can be manifested in loss of promotion or educational opportunities, unwanted job changes, etc.

• Psychosocial costs reflect the impact that a catastrophic injury or death has had in the past and will in the future have on the emotional, psychological and social well-being of the client and/or family. The negative psychosocial costs may extend to the redefinition of the roles of various family members, the loss of employment to care for the victim, the loss of monies the family intended to use for a child’s future education, repairs to the house, or other necessities. These changes have both economic and non-economic impact on the family relationships.

Proving and Recovering Future Medical Expenses

How can we best explain and then remind jurors that this trial is the one and only opportunity each of our clients will have to recover for losses that have yet to arise?

• Make it come alive. Very often, lawyers behave somewhat apologetically in the presentation of damage evidence. That does not help. The direct exam of each damage witness should incorporate the various techniques of persuasion you have learned over the years to help tell your client’s story. Begin your examination with a strong point and end with another strong point. Areas that must be covered during the examination but that have little dramatic or emotional impact should be sandwiched between the opening and closing points. Use foreshadowing when changing from one topic to another during the examination. As an example, you can begin questioning by stating: “Mrs. Coben, I’d like to talk with you about what life was like at home during the first few weeks after John came home from rehab.” Foreshadowing signals to the witness and the jury what area you are about to cover. Draw the jury into the examination by making it as interactive as possible. Get witnesses off the witness stand and in front of the jury with charts, photos and other exhibits. Often, a physiatrist or life care planner will provide significant testimony concerning the client’s struggles with independence and the need for home attendant care. Integrate into this testimony a narrative of the day-in-the-life film, photographs of the client’s home and the client participating in daily activities. You should even consider, if it can be done tastefully, having a medical witness demonstrate some of the client’s medical or functional issues by placing the client in front of the jury box.

• Hedonic damages. Every jurisdiction allows the jury to award sums of money for “pain and suffering,” disability and disfigurement. In most jurisdictions, victims may also recover for the loss of life’s pleasures. While some states allow “economic evidence” of the value of these hedonic damages, and it is permissive to ask the jury to award a specific amount of money for these losses, counsel should seriously consider the necessity or logic of making a specific monetary request when evidence of other financial losses — usually involving millions of dollars — has already been presented for direct costs. With the use of a day-in-the-life film and an appropriate, but brief court appearance by your client, you can make a much greater impact and avoid the potential for insulting the jury by making a specific monetary request suggesting they cannot fairly address this damage claim.

• Economic projections of future losses. “Keep it simple.” The economic factors affecting medical costs and wages are primarily inflation and productivity growth. Generally, increases in wages and the cost of medical care follow inflation. Productivity increases are the source of real wage increases. When workers become more productive, their services are worth more and a rise in pay typically results. Because productivity-based increases in wages and medical costs are historically grounded, the estimate of costs and services and loss of earnings must account for real wage gains. For decades, Pennsylvania has applied what is known as the “total offset method” to calculate future lost earnings and earning capacity. The total offset method is based on the assumption that the interest generated on awards will be offset by the loss of purchasing power resulting from inflation. This method of calculation for the lost earnings and earning capacity does permits increases for productivity.

Overview

A jury award of damages is to provide the victim or her family with a sum of money that will replace the money she has lost and expended, and compensate for future expenditures and losses. The first step is to consider that the plaintiff or the decedent is an economic unit harmed by the tortfeasor. That realization dictates a practical approach to presenting evidence documenting these losses fully but without puffery. The second step is to target the critical intangible losses suffered and focus the development of necessary evidence to convincingly prove how these deficits have caused suffering, pain and a loss of life’s pleasures. Lastly, it’s critical that a succinct set of claims and witnesses supporting each be organized and prepped for trial. It is undoubtedly true that the number of witnesses is not nearly as important as what one or two have to say. Thomas Jefferson observed that, “Our greatest happiness does not depend on the condition of life in which chance has placed us, but is always the result of a good conscience, good health, occupation and freedom in all just pursuits.” These are the damage elements at the heart of every claim — never forget it. •

Larry E. Coben is a trial lawyer at Anapol Schwartz who has tried complex cases throughout the United States. He is a recognized expert in the fields of products liability and catastrophic injury litigation. He can be contacted at lcoben@anapolschwartz.com.