Damage Awards

Various Kinds of Damage Awards

Damage awards are of two general types, compensatory and punitive, and they serve different functions. Compensatory awards are intended to return an injured person or entity (e.g., a business, agency, or corporation) to pre-injury levels of functioning—that is, to restore that party to the position it was in prior to the injury or harm. For example, a person injured in an automobile accident may receive a compensatory damage award to cover any medical costs, lost wages, and pain and suffering related to the injuries sustained in the accident. As another example, a business may receive a compensatory damage award to cover any revenues lost to competitors involved in price-fixing, trademark infringement, or sharing of trade secrets.

Compensatory damage awards are themselves of two sorts: economic and noneconomic. Economic damages are intended to cover the financial or economic costs incurred by the injured party. These can include past and future lost wages, past and future expenses related to medical care and rehabilitation, past and future lost profits, and loss of reputation or business opportunity. In theory, these awards should be relatively easy to gauge because they are generally tied to objective data such as hospital bills, costs of property repairs, and amount of time away from work. In fact, even these losses are difficult to assess because they require jurors to make predictions about the future and then to discount their awards to present value (i.e., the injured party is given an economic damage award now that will, over time, grow to equal the amount that the jury has deemed appropriate). In addition, they may require a jury to agree on economic uncertainties such as future interest rates, the likelihood that injured persons would have been promoted or received raises or that businesses would have been profitable had they not been harmed, and projected life expectancies for persons who require lifelong care.

Determining noneconomic damages can be even more problematic. Their function is to compensate the injured party for “pain and suffering,” including bodily harm; emotional distress, such as fear, depression, and anxiety; loss of enjoyment of life; and pain and [Page 182]disfigurement. For example, after the drug manufacturer Merck was found liable for the death of a Houston man who had been taking the painkiller Vioxx, it was required to pay millions of dollars to the man's widow to compensate her for pain and suffering. Noneconomic damages are especially difficult to assess because they have no obvious metric: There is no cost accounting of one's pain and suffering. Juries have sometimes been criticized for being capricious and unpredictable in determining damages (as described below), and criticism often focuses on an unexpected award for pain and suffering.

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