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64 N.Y.U. L. Rev. 256 (1989)
Final Moments: Damages for Pain and Suffering Prior to Death

handle is hein.journals/nylr64 and id is 270 raw text is: FINAL MOMENTS: DAMAGES FOR PAIN AND SUFFERING PRIOR TO DEATH DAVID W. LEEBRON* Damage awards for pain and suffering prior to death vary widely. Professor Leebron examines such damage awards and the possible explanations for the variability, and in so doing sheds light on damage assessment by the tort system in general After exam- ining the theoretical justifications for awards for pain and suffering prior to death, and determining that the primary justification for them must be deterrence, not compensa- tion, he proceeds to analyze an extensive empirical database of cases. He isolates fac- tors that might cause award variability, such as the manner of death and duration of antemortem pain, but concludes that no factor or set of factors can explain the high variability in the damage awards. The variability observed, however, is consistent with the view of the jury as a survey mechanism. To reduce variability, Professor Leebron recommends that judges take a more active role in reviewing trial awards and intervene when a jury strays significantly from past awards for similar deaths. INTRODUCTION On January 28, 1986, the space shuttle Challenger lifted gracefully from the launchpad in Cape Canaveral, Florida. Seventy-four seconds later, without a hint of trouble, the shuttle suddenly exploded. As the pieces fell into the ocean, there was little doubt that all aboard had been killed.I Several weeks later the cabin of the craft was recovered from the ocean floor. The recovery of the cabin largely intact, with the bodies aboard,2 fueled speculation on the front pages of major newspapers that perhaps the explosion had not killed the astronauts instantly. Perhaps they had suffered a horrible death, realizing their impending doom as the shuttle hurtled at a thousand miles per hour toward the ocean. On July 15 the widow of the Challenger's pilot filed a claim for more than $15 million against the National Aeronautics and Space Adminis- tration (NASA). The claim alleged that Commander Smith was thrown about in the spacecraft and in the few seconds preceding his * Professor of Law, New York University. Jennifer Arlen, Eleanor Fox, Jeffrey Gordon, Jim Jacobs, Francis Kamm, Lewis Kornhauser, Sylvia Law, Ricky Revesz, and Laura Sager gave valuable comments on earlier drafts of this article; any errors and omissions remain my own. Michael Broyde and Marjorie Flacks, students at New York University School of Law, provided valuable assistance in the research and preparation of this article. The research for this article has been generously supported by the Filomen D'Agostino and Max E. Greenberg Research Fund of New York University School of Law. I See The Shuttle Explodes-6 in Crew and High-School Teacher are Killed 74 Seconds after Liftoff, N.Y. Times, Jan. 29, 1986, at AI; Space Shuttle Explodes, Killing Crew, Wash. Post, Jan. 29, 1986, at Al. 2 See Navy Divers Sight Astronaut Cabin; Dead are Aboard, N.Y. Times, Mar. 10, 1986, at Al. 256 Imaged with the Permission of N.Y.U. Law Review

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