9-16-10 DSO Notes

8/8/2019 9-16-10 DSO Notes

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Remedies Outline Last updated 12/7/2010

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1. Substantive policy limitations

a. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc. [bowling centre antitrust case]

i. Rule: For plaintiffs to recover treble damages on account of Clayton Act

violations, they must prove antitrust injury, meaning that the injury is of

the type that the antitrust laws were intended to prevent and that flows

from that which make defendants acts unlawful. The injury should reflect

the anticompetitive effect either of the violation or of anticompetitive acts

made possible by the violation.

1. Despite Ps allegations, Brunswicks actions were not anti-

competitive, smothering competition. Contrarily, Brunswicks

actions preserved competition in the bowling market.

2. If claiming damages (particularly treble) under a statute, look to the

purpose of the statute. Does the statute acknowledge within its

purview the damages you sustained?

b. A victim who has not complied with laws may or may not be able to claim

damages (i.e., Plaintiff claiming victimization under breach of contract or

tortious conduct, but not licensed to do business under the state, is not likely

to recover under state law.)c. Employment If an employee is wrongfully discharged, and subsequent to the

discharge the employer learns of a legal reason for discharging that employee,

the employee may be entitled to back pay from the date of wrongful discharge

to the time at which the employer discovered the facts that would have resulted

in a lawful discharge

d. Attorney services An attorney discharged by his client without cause can

recover only the reasonable value of his services performed up to the time of

breach, not the expectancy he would have earned by completing the services

b. Damages where value cannot be measured in dollars

i. Personal injuries and death

1. Pain and sufferinga. Courts are split as to whether counsel may suggest a per diem argument for

pain and suffering, although a majority of courts will allow counsel to

recommend a lump sum

i. Debus v. Grand Union Stores [Vermont per diem pain and suffering case]

1. Rule: In cases where claims for pain and suffering are made, juries

are entitled to draw inferences from the evidence before them in

order to equate pain with damages. As such, counsel may suggest a

total number for pain and suffering, such as a per diem calculation.

2. Public policy: The jury can benefit by guidance offered by counsel in

closing argument as to how they can equate pain with damages. The

opposing counsels opportunity to refute closing argument will ensure

that an absurd hypothesis will be rejected. Even if it is not, and a

verdict is excessive, the trial court has adequate mechanisms, such as

remittitur, to deal with it.

ii. Pros:

1. A jury is not bound to counsels per diem/lump sum suggestion and

may disregard or modify it

2. Breaking down the total sum to daily compensation ends up with a

relatively minimal amount

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iii. Cons:

1. Designation of a per diem/lump sum amount is arbitrary

2. Pain and suffering fluctuates day-to-day, thus the total amount may

not accurately reflect true pain and suffering (too much or too little)

iv. Courts that allow per diem arguments to be made to a jury require such

arguments to be reasonable

b. Gold Rule argument Jurors are asked how much they would want if they had

suffered Ps injuries [consistently disallowed by courts]

i. A jury is not supposed to identify with a party or abandon its neutral,

impartial role any more than a judge does

c. Argument that jurors should give the market value of the injuries, or the amount

it would cost to hire someone to suffer these injuries [not permitted in any state]

2. Wrongful death

a. Historically, English courts did not allow a claim for wrongful death because the

claimant (the decedent) could not make a claim and had nothing to claim

b. Survival statute The decedents representative makes a claim from the

standpoint of the deceased for compensation of the decedents losses that are

caused by the injury and that would have been recoverable by the decedent ina personal injury action if the decedent had lived. The heirs/beneficiaries will

likely receive the damages.

i. Economic damages

1. Decedents medical expenses

2. Decedents lost wages after injury and before death

3. Decedents funeral and burial expenses (all jxs)

ii. Non-economic damages

1. Conscious pain and suffering by decedent from injury before death

iii. Value of the decedents life to him-/herself (minority jxs CT, NM, GA)

1. Extreme variation of survival statute

c. Wrongful death statute The decedents heirs or beneficiaries may claimcompensation for losses they suffered as a result of the decedents death

i. Economic damages

1. Loss of expected financial support that individuals would have

received from decedent had he or she not died (all jxs provide some

measure of compensation for financial support)

2. Loss of expected inheritance that individuals would have received

had decedent lived (some jxs states that deny recovery do so

because inheritance is too speculative)

a. Loss of inheritance the decedents financial surplus

beyond what would be spent on self and dependents.

3. Monetary value of services, advice, training, and companionship

that decedent would have provided to immediate family members

(most jxs) Services the decedent would have provided to his spouse

or dependents, or to his parents if decedent was a child (i.e.,

household chores, homemaking, nurturing, training, education,

guidance)

4. Decedents funeral and burial expenses (all jxs)

ii. Non-economic damages

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1. Loss of society and companionship (small majority) Positive

benefits P would have received if decedent had lived (i.e., love,

affection, care, attention, companionship, comfort, protection)

a. Potentially large amounts

2. Emotional distress (minority rule) Most jxs do not allow recovery

for negative experiences resulting from the death (i.e., grief, mental

anguish, etc.)

d. Jurors presumably compensate for grief even when they are told not to

3. Factors affecting a jurys verdict

a. My number one job as an attorney is to make juries like my client, because if

the jury likes my client it will make a difference. ~ Clarence Darrow

i. A jurys liking of either the defendant or plaintiff has an effect on its

verdict (i.e., perception of character, quality of relationship btwn. plaintiff

and defendant, etc.)

b. Additional factors that impact a jurys verdict include quality of advocacy and

the order of settlement (party that settles first)

4. Tort Reform Fixed limits on recovery

a. State courts are split over the constitutionality of damage capsi. Medical malpractice is the number one area for tort reform and

regulation, especially in California

ii. Etheridge v. Medical Center Hospitals [cap on Virginia medical malpractice

damages case] compendium of constitutional arguments challenging tort

reform limitations

1. A Viriginia statute limiting the amount of recoverable damages in a

medical malpractice action was found not to violate either the Federal

or Virginia Constitution.

a. Statute didnt violate right to trial by jury because at the

time the VA Constitution was passed, the common law did not

recognize a right to full tort recovery or to have a jurydictate the legal consequences

i. This argument is typically the most successful in similar

cases in other jxs

b. Statute didnt violate right to substantive due process

because there was a reasonable relation (rational basis test)

between the language of the statute and the policy of ensuring

that health care providers can obtain affordable malpractice

insurance

c. Statute didnt violate separation of powers because

legislature has always had the right to affect and even repeal

remedies

d. Statute wasnt special legislation that arbitrarily favored a

regulated class because it was based on legislation findings

based on medical malpractice reports

i. Dissent: Statute distinguishes certain health care providers

and their insurers from others, thus creating a special class

e. Statute didnt violate the Equal Protection Clause because

there was a rational basis underlying the findings.

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iii. Smith v. Dept. of Insurance [cap on Florida pain and suffering damages

case]

1. A Florida statute limiting the amount of recoverable noneconomic

damage was found to violate the Florida Constitution.

2. There must be a showing of overwhelming public necessity for a

limitation statute, otherwise it is unconstitutional

9-16-10 DSO Notes

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