Trial Magazine

Many attorneys overlook noneconomic damages and focus on monetary losses or medical bills because, in theory, hard numbers make it easier for the jury to assess damages. But noneconomic damages can be significant and should not be ignored.

For example, in 2018, I tried a case against Ethicon and Johnson & Johnson involving two of their transvaginal mesh devices. My client was badly injured by the mesh and required five surgeries. A 56-year-old senior executive at the time of trial, she lived an active lifestyle and frequently traveled domestically and abroad for work. At first glance, her best shot at meaningful compensatory damages was to focus on her medical bills, lost income for time off after the surgeries, and a life 
care plan.

But I proceeded on noneconomic damages only—her pain and suffering, her inability to have intercourse with her husband, her constant bleeding, her inability to control her bladder, and her fear that these conditions would never improve and any surgery might make them worse. This resonated with the jurors, who returned $15 million in compensatory damages. Below are five tips to help prove noneconomic damages.

Talk to your clients. Don’t just let staff handle case intake, determine basic damages, and leave it at that. Spend time with your clients, and learn what they endure from the time they wake up on a Monday morning until the following Monday. Understand whether they have trouble sleeping and how that affects them, whether their condition impacts their marriage and how that has changed their lives, and how profoundly their injuries affect daily activities. Talk through their responsibilities at work and how their injuries affect each one of those.

In the transvaginal mesh case, my client wore only black pants to work because urine would run down her legs at times, and she was mortified by it. She also designed the building seating plan so she had the office closest to the restroom. She cried when she talked about what she endured at work to cover up her condition. You won’t need to rely on an expert to bring out these damages, but you must know they exist to be able to discuss them during deposition or at trial.

Scour the medical records. Medical bills lack emotion, and jurors won’t assign damages for pain and suffering if you just provide the medical bill totals. Go through the medical bills and records, and talk to your clients about what is documented. Ask what each diagnostic test or examination meant for them—if it was painful, embarrassing, or caused some other interruption in their lives. Look at the medical descriptions of the injuries, and ask clients what those have meant to their lives. For instance, the word “scar” in and of itself doesn’t mean much to most of us. But imagine having scarring so painful that you can’t use a tampon and can’t be intimate with anyone. That’s something you can learn about only by discussing with your client what’s documented in the records.

Have your client speak with your experts. Your experts should understand all the noneconomic damages you plan to present at trial and be prepared to weave them into their testimony through the medical records and their discussions with the client. Before the expert’s examination, discuss everything you learned about the client’s pain and suffering, and prepare the expert to ask about these same things.

For instance, for a client with a reduced range of motion in an arm, your expert physician might document only the reduced range of motion and assign a percentage by which the motion is reduced. But having the expert discuss that condition with the client can lead the expert to testify that the client can’t open jars herself so she can’t cook dinner, that she can’t comfortably type all day, and that she can’t close the trunk of her car. This brings the noneconomic damages to life for jurors.

List out the noneconomic damages. The standard jury instruction in Pennsylvania where I practice defines the subcategories of noneconomic damages as loss of life’s pleasures, pain and suffering, embarrassment and humiliation, and disfigurement. Make a PowerPoint slide or use a whiteboard to list out each item that fits under noneconomic damages. It’s a lot easier for jurors to discuss these items if they have seen them listed together in one place. The jurors may even ask to see the list when they deliberate.

Comparisons are key. I have yet to meet a client who has no preexisting condition or other complicating history. Unless you can get these excluded by filing a motion in limine, you have to address them at trial. Often this means having the client talk about these issues openly and honestly and sharing how much worse they are now. My transvaginal mesh client had preexisting stress urinary incontinence and would leak urine when she engaged in physical activity. I talked about this and her prior need to wear pads daily and then compared this inconvenience to the post-mesh humiliation of losing control of her bladder at a dinner with colleagues and waiting to get up until everyone else left.

Not every case will have examples of pain and suffering so horrific it makes jurors cringe or medical records so well documented that your expert could spend hours going through the details. But by doing the legwork, you can open the door to noneconomic damages. 

Kila B. Baldwin is a partner at Kline & Specter in Philadelphia and can be reached at kila.baldwin@klinespecter.com.