Changing The Way We Evaluate Pain And Suffering

It has long been the rule in Georgia that the award of damages for pain and suffering is determined by the enlightened conscience of fair and impartial jurors.  But proposed amendments to Georgia’s Pattern Jury Instructions may expand the factors put before a jury to determine this item of damages.  Under the current pattern instructions, mental pain and suffering includes categories for consideration by the fact finder of anxiety, shock, and worry, and loss of capacity to work.

Proposed changes to the pattern instructions would follow the language of the charge affirmed in Food Lion v. Williams, 219 Ga. App. 352, 464 S.E.2d 913 (1995).  The Food Lion decision broaden the scope of factors a jury may consider to assess compensation for pain and suffering to include:  interference with normal living, interference with enjoyment of life, loss of capacity to labor and earn money, impairment of bodily health and vigor, the fear of extent of injury, shock of impact, actual pain and suffering (past and future), and past and future mental anguish.  The factors set forth in the Food Lion decision will appear in the revisions to the pattern instruction and may be effective as early as July of 2015.  The inclusion of additional factors along with the use of mortality tables offered to jurors as “objective criteria” for the calculation of the daily pain and suffering experienced by a plaintiff can exponentially expand a defendant’s liability exposure.  In the face of new methods to influence damage awards, defendants cannot solely rely upon the appellate courts to ease the burden of lofty jury verdicts.  Georgia’s appellate courts have long held that defendants have a heavy burden when trying to convince a court that a damage award is excessive. AT Systems Southeast, Inc. v. Carnes, 272 Ga. App. 671, 671, 613 S.E.2d 150 (2005).  Moreover, appellate courts of this State are cautioned to be hesitant when asked to second guess damage awards based on pain and suffering.Id.

Despite the expansion of the methods and categories by which a jury may calculate damages for pain and suffering, trial strategy and defensive maneuvers are still subject to the evidentiary standards outlined by the trial court.  For example, the use of a mortality table is not always required by the evidence.  When a person’s age is shown, his or her life expectancy may be determined by the jury without any other direct evidence on the subject.Wells v. Roberts, 225 Ga. App. 112, 114, 483 S.E.2d 339 (1997).  Additionally, the use of a mortality table should be employed only after a finding of permanent injury to assess the diminution of earning capacityGreat Atlantic & Pacific Tea Co. v. Turner, 180 Ga. App. 533, 535, 349 S.E.2d 537 (1986).  Even the introduction of new pain and suffering factors does not change the law that a “request to charge must embody a correct, applicable and complete statement of law, legal and perfect in form and adjusted to the pleadings and evidence; it must not be argumentative or seek an expression of opinion on the part of the court; and it must not be so phrased so as to have the tendency to confuse and mislead the jury or to becloud the issues in the case.” Wadkins v. Smallwood, 243 Ga. App. 134, 139, 530 S.E.2d 498 (2000).

Defense counsel will still have to anticipate how a jury will utilize these additional Food Lion factors in awarding damages for pain and suffering, if at all.   Increasing the use of independent medical evaluations can help each side to become more proactive in providing the jury with objective criteria to assess the extent of a sustained injury.  The use of focus groups can also assist the parties in gaining a better understanding of how a jury determines what compensation a person is owed for a sustained injury.

Dawn N. Pettigrew