Putting a Price on Pain-and-Suffering Damages: A Critique of the Current Approaches and a Preliminary Proposal for Change
![handle is hein.journals/illlr100 and id is 105 raw text is: Copyright 2006 by Northwestern University School of Law Printed in U.S.A.
Northwestern University Law Review Vol. 100, No. I
PUTTING A PRICE ON PAIN-AND-SUFFERING
DAMAGES: A CRITIQUE OF THE CURRENT
APPROACHES AND A PRELIMINARY
PROPOSAL FOR CHANGE
Ronen Avraham*
I. INTRODUCTION
Seventeen volumes and seventeen years ago, the editors of the North-
western University Law Review made a wise decision. They accepted for
publication an article-Valuing Life and Limb in Tort: Scheduling Pain-
and-Suffering-which has become one of the most important pieces con-
cerning pain-and-suffering damages in the legal literature.' Like many
great works, this paper was a joint effort of multiple scholars: Randall
Bovbjerg, from the Urban Institute in Washington, D.C.; Frank Sloan, an
economics professor at Vanderbilt University; and James Blumstein, a law
professor, also at Vanderbilt. In their paper, Bovbjerg, Sloan, and Blum-
stein (hereinafter BSB) took upon themselves a daunting task: analyzing
various ways to put a price on the unpriceable, a person's pain and suffer-
ing.
Nothing much has changed since BSB's seminal paper. Pain-and-
suffering awards seem to continue to make up approximately fifty percent
of total awards, at least in some areas of personal injury cases.2 Juries,
judges, lawyers, lawmakers, and academics still struggle with the same di-
lemma BSB tackled: what is the best way to adequately compensate tort
victims for the noneconomic harms they incur? In many ways, BSB's pa-
per is as relevant today as it was seventeen volumes ago.
Assistant Professor of Law, Northwestern University School of Law. I thank Tom Baker, Shari
Seidman Diamond, and Mark Geistfeld for their comments and Issa Kohler-Hausmann for great research
assistance. I also thank Eric Olshan and Kate Shaw of the Northwestern University Law Review for
great editorial work.
I Randall R. Bovbjerg, Frank A. Sloan & James F. Blumstein, Valuing Life and Limb in Tort.:
Scheduling Pain and Suffering, 83 Nw. U. L. REV. 908 (1989) [hereinafter BSB, Valuing Life and
Limb]. As of May 2005 this piece had been cited in 147 law reviews, 15 other journals (from Health
Affairs to Gerontologist), and 4 legal news articles, as well as in 5 cases.
2 See Neil Vidmar et al., Jury Awards for Medical Malpractice and Post-Verdict Adjustments of
Those Awards, 48 DEPAUL L. REV. 265, 296 (1998); W. Kip Viscusi, Pain and Suffering in Product Li-
ability Cases: Systematic Compensation or Capricious Awards?, 8 INT'L REV. L. & ECON. 203 (1988)
[hereinafter Viscusi, Systematic Compensation].](ViewImageLocal?handle=hein.journals/illlr100&div=13&collection=&method=preview&ext=.png&size=3)
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Putting a Price on Pain-and-Suffering Damages: A Critique of the Current Approaches and a Preliminary Proposal for Change
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