There are some fundamental legal concepts about damages that should be incorporated in most personal injury damage cases. Some of the more important ones include a factual introduction followed by a clear overview of the law of damages. It is important the jury understands there is only one trial to cover the past, present and the future of damages. A time distinction between these three periods relating to the damage claims should be made clear. The jurors need to understand the burden of proof is not “beyond a reasonable doubt” but. rather “more probably true than not true”. Another important distinction to be made is that the damages usually involve two very different issues: economic and non-economic. Economic damages are limited to out-of-pocket expenses, financial losses and dollar specific monetary loss. On the other hand, non-economic damages are not precise and require analysis as well as evaluation by the jurors. They require setting a dollar amount equal to the  injuries caused by the negligence of the defendant. The jury must understand that economic and non-economic damages are different and need to be evaluated individually by the past, present and future.  

Another challenge we are often faced with are issues involving the client which is likely to produce an immediate negative reaction with the jury. It can involve issues of appearance, past personal history or race. Religion is an example of a issue that can be a factor that has to be dealt with both in voir dire as well as opening statement.

The amount of the verdict you are seeking is another subject for opening statement as well as for voir dire. Whether a specific amount or a general range it should be a subject for opening statement. As part of the damage presentation. What is offer here is an simple illustration  as a as an example of presenting this to the jury.

There are a variety of ways of going about this in the opening statement. Here is an illustration  from the transcript of a trial. This 2008 jury case was tried in Snohomish County. It involved heart bypass surgery where a medical instrument suddenly overheated and burned the patient’s heart. The verdict against the device manufacturer was $41,100,000.00.surgery. While this example is limited by the type of case as well as to the time of trial, it illustrates one  approach to dealing with the principles of opening statement concepts. Keep in mind these are excerpts from the entire opening and from the trial transcript involving damage issues.

Introduction to Case

“Court:  You may proceed Mr. Luvera

This is a man who had a mild heart attack and went to the hospital where they found he had occluded arteries and they did a bypass. You all understand a heart  bypass is where they bypass the occluded or blocked arteries and blood supply with a piece of tissue they take out of arms and other places. It is used as a substitute to go around the blockage. That’s what he went into the hospital for. It was a fairly minor heart attack. Before the bypass his cardiac function was pretty normal even  after the attack. When the bypass surgery was completed, it should have been a success. In other words, this operation should have lasted a little over two hours, he should have been in the hospital three or four days, and he should have walked out. Afterwards he should have been Bill Clinton or whoever it is you know that is functioning with a bypass procedure, leading a fairly normal life. That’s how this all started but it had a tragic ending. The catheter burns his heart while he’s in surgery and he has to have a heart pump temporarily inserted. He is transferred to the University of Washington and put into a chemically induced coma while waiting for a heart transplant to become available. After weeks of waiting a heart becomes available and is surgically implanted along with the peacemaker.

The Issue of  Plaintiff Religion Sikh

As we discussed in jury selection, the family belong to the Sikh faith. They are not Muslim but Sikh. In the Sikh religion and Indian culture, the family unit is an extremely important aspect to their life. They even call their relatives uncle and brother when they are not really uncle and brother. There is a strong family relationship involved. And I might add, because you may be curious, the Sikh religion, is a religion that is highly tolerant of other religions and uniquely believes that men and women are totally equal. This case involves the whole family. The family is made up of the father  Paramjit, who I will call Parmee, and is 54, He became a U.S. citizen. He had a child from a previous marriage who is 27 and has a grandchild who is 4 years old.  He married Harmeet, who is seated here  in 1955 in Vancouver and they have two children, Harmanjot, who you met the other day, who is 11, was born in 1996, AJ who  was born in 2000 and he is 7. Harmeet is a very interesting person. She was born in 1967 in India. She moved to the United States in 1992. She too studied and became a citizen of the United States, was naturalized in 2000. Her previous husband died  and she met Parmee and they married. They had a child called Preet, who was born in 1991.Preet is an extraordinary child, she speaks several languages. She is a straight A student and very extraordinary. Without going through an adoption, she is as much a child of the family as the other children. They have a very close relationship. So that’s the family.

Introduction to Burden of Proof & Damage Concepts

In a trial like this, when we are talking about damages and harm, the test is for you to decide whether it is more probably true than not true. That’s all that’s required. Jurors, in making their decisions on the evidence, on the issue of harm and damages, do so on the basis of: Is it more likely true than not true?

In order to understand what happened we have to viewpoint the evidence –we have to view the evidence from three different time periods, the past, present and future. The past being everything that’s happened up to this moment. The present is the situation now. The future being everything that will happen from now until he dies.

There are two kinds of damages when we are talking about harm. One is economic losses. Those are the bills. Those are the amounts that it takes to pay back other people that are owed. The economic harms consist of the past medical and other expenses to tell you based upon the doctors what it costs for all the things the doctors say are required. The other is non-economic losses. That’s making up for the things that can’t be repaired or restored –you can’t fix. That is all the things that go into the idea of  what does it means to have your life turned upside down.

Economic loss involves things which will sound insulting because we don’t need a jury in a sense. We could use an adding machine, it’s a matter of adding up bills. The thing the jury has to resolve is what bills we are talking about, what’s fair to be included in those bills. It partly depends upon how much longer he will live.  Nobody knows. He might live a normal life
expectancy. The only person who knows is God. But this is for you to evaluate. You are not bound by anything they tell you.

Elements of damages

And what happens is, at the end of the case, the judge will give you written instructions on what you are to consider. And I’m taking the liberty because everybody agrees these are the elements and telling you now. The non-economic harms that you will consider here past and future are the loss of enjoyment of  life, including shortened life expectancy. The major and primary loss involved in this case is the loss of enjoyment of life.   Parmee was a very, very athletic kind of a guy, and loved family and loved his friends. They all got together a lot but all of that has changed. He has a shortened life expectancy. He worries about infections. His health has been ruined. That’s just all there is to it. -his health and his life have been ruined.

He has a dependence now on the family that was not there before. He has low energy. He tires easily from all of this. And he has — I don’t want to make more of it than is there, but he tells me that he has nightmares. And I don’t mean to suggest to you that these are terrifying to him but they are very upsetting and continuous. It apparently is a peculiarity of all the medications. He has these very strange nightmares that affect his sleep. Another damage element is disability, that is those things he can’t do now, he could before. The element of disfigurement is another factor you will evaluate.  I’m  talking about surgical scars –I don’t think it’s the  major issue in this case, but he has scars that go from here to here from the surgery. That’s what disfigurement means. The loss to the marital relationship and to his children is significant. The law refers to this as loss of  consortium.

Mental pain & suffering. Now, mental suffering is very different than physical pain. Mental suffering is, in his case, is the loss of a role in the life that you live. You are a husband, you are a cook, you are a –you support the family, and having that role be taken away or changed changes your life. It is how we see each other and ourselves, our self-image . It is how, in a family particularly — in this family, in a close knit, loving family that extends even out to relatives, the injury like this just ripples out and affects everybody in the relationship. That’s mental suffering.

As to physical pain, he doesn’t have an extreme amount of it now, but he sure did. So, our evidence of harm will be by three factors. We will approach this –our evidence will approach it from how bad was the harm, how long will it last, how much does it interfere with the enjoyment of life. So, the verdict amount, under the evidence that we will suggest to you, will involve the difference between what should have been had this had not happened and what it is now. And here is how I’m going to approach it. The verdict has to be a fair verdict and it has to be a reasonable verdict. Fair and reasonable. Okay. It must include the economic losses. It has to take into consideration the nature and extent of the injuries for non-economic involving the elements I just talked to you about, plus this element. It must consider the loss of enjoyment of life he has suffered.  And when that’s done the amount of money must balance perfectly against the harm. It’s just that simple. And he’s entitled to full and complete remedy for what’s been done to him. And I’m going to show you how I think you should go at that when I have a chance at the end of the case and hope to resolve all of the doubts you might have about this.

The Amount of the Verdict

You know from our discussions during jury selection, in our judgment a fair and reasonable verdict is many millions of dollars when the economic bills and losses are added to the non economic loss of enjoyment of life coupled with the law regarding damages. At the end of the case I will offer you a method for analyzing this using the law the judge will give and the verdict form you will fill out.

CONCLUSION

The basic legal rules applying to damages should be made clear to the jury as early in the case as is possible. Opening statement is an opportunity to do that. The fundamental legal concepts include some of the following: (1) There is only one opportunity to present the case for a legal remedy. The verdict must cover the past, present and future losses over life expectancy (2) there is a total difference between economic and non-economic damages (3)  the elements of damage applicable to non-economic damages can include –  the nature and extent of injury, loss of enjoyment of life, disfigurement, disability, pain and suffering, mental and physical as well as consortium in an appropriate case. All of these factors, along with liability and the evidence supporting these losses are an important part of the opening statement.