To succeed in a personal injury action, a plaintiff must prove two things by a
“preponderance of the evidence” – that they are more likely than not. Of course,
the plaintiff must first prove that the defendant is legally responsible (“liable”) for
their injuries. That proof is often based on evidence that the defendant’s failure
to act with reasonable care (“negligence”) caused the injuries.
Having proven liability, the plaintiff must also prove that they should recover a
lump sum of money (plaintiff’s “damages”) from the defendant. That sum is the
amount that will fairly compensate for all the plaintiff’s losses and other
adversities from the injuries.
Some damages are relatively easy to document and calculate. For example, if,
before a settlement or the trial, the plaintiff has incurred medical bills, missed
work, and lost income due to the injuries, those damages are hard for the
defendant to dispute.
Non-economic and future damages are, by their nature, much more difficult to
prove and quantify but can be critical concerns for plaintiffs, especially in cases
involving severe injuries and their long-term or permanent effects. What are
they, and why are they problematic?
Non-economic Damages
The best way to explain the problem with an injured plaintiff’s “non-economic
damages” is to contrast them with their opposite, the plaintiff’s “economic
damages.”
Economic damages (also called “specific damages” or “special damages”) are
amounts of money that compensate the plaintiff for losses resulting from their
injuries that have specific, determinable money values. Such losses include the
plaintiff’s lost income and the costs of doctor and hospital visits, medical
procedures, prescribed medications, assistive devices, rehabilitative therapy, and home-care services. These damages can be proven and calculated using pay stubs, employment records, medical reports, bills, receipts, and similar evidence.
Non-economic damages (also called “general damages”), on the other hand, are
amounts of money intended to compensate the plaintiff for all of the other
adversities suffered as the result of the injuries – those that do NOT have
specific, determinable money values. Non-economic damages include:
● Pain and Suffering – physical discomfort endured as a result of the
plaintiff’s injuries,
● Emotional Distress – “non-physical” effects of the injuries, such as
fear, anxiety, sleep disturbances, post-traumatic stress, and
● Loss of Enjoyment of Life – the adverse impacts that the injuries
have on the plaintiff’s quality of life as compared with their life before
the injuries
No one can reasonably deny that pain, emotional distress, and loss of enjoyment
can result from a plaintiff’s injuries and that they can be severe. Still, the only
legal remedy available is non-economic damages – money. That’s the problem.
How does a plaintiff calculate and “prove” to a judge or jury the amounts of
money that will fairly compensate for enduring the pain, anguish, and
embarrassment of being badly scarred or disfigured or the inability to do things
they used to enjoy?
Future Damages
As the name suggests, the problem with “future damages” is that they are paid to
compensate a plaintiff for losses and other adversities that have not yet been
incurred or suffered. Future damages are unavoidable issues in many personal
injury actions, particularly those involving more serious injuries, because of the
time constraints of the legal system:
● The applicable statute of limitations provides that a personal injury action
must be initiated within a prescribed period. In North Carolina, for instance, a plaintiff must file a personal injury action within three years of the injury.
● After the action is filed, depending on the court and the case’s complexity,
it can take anywhere between a few months and a couple of years to get to
the trial, where the issues between the plaintiff and the defendant are
“judged on the merits.”
● The legal principle known as “res judicata,” Latin for “a matter already
judged,” generally prevents parties from having their issues decided twice
in court. Once an injured plaintiff and a negligent defendant have had their
“day in court” on the types and amounts of damages the defendant should
pay the plaintiff, they’re usually stuck with the results.
Common types of future damages in personal injury cases include the plaintiff’s
estimated costs of future doctor visits, medical procedures and equipment, and
loss of earning capacity. To compound the difficulty, future damages can also
include non-economic damages to compensate for the plaintiff’s long-term or
permanent pain, distress, and loss of enjoyment. How long will the results of the
plaintiff’s injuries continue, and how should they be valued?
Our attorneys have over 40 years of experience helping our clients with their
injury cases, including cases involving significant non-economic and future
damages. If you have been injured and need legal advice or assistance, you can
contact Kelly & West and arrange a free consultation.
