Assessing Damages

Posted by Kenneth C. Anthony Jr.

I was recently asked to serve as an arbitrator, but in a way that I had not done before. In the process, I learned something about how I assess damages in cases, and, perhaps, how juries do as well.

The case, or cases, rather, arose out of a motel fire. On one of the coldest nights of the year, just after Christmas, sleet was falling in the wee hours of the morning. An arsonist, it appears, for reasons still unclear, apparently set fire to some corrugated boxes filled with styrofoam packing materials in a back hallway. Toxic smoke filled part of the motel quickly. Four adults and a child died. About twenty others were injured in varying degrees – from severely disabled and permanently impaired to slightly scarred and mildly inconvenienced.

Suit was filed on behalf of various of the victims by a number of lawyers. After protracted and contentious litigation, a settlement of sorts was reached whereby a pool of money was paid that the plaintiffs could divide as they chose. As one would expect, the plaintiffs were unable to agree on a division, but what they finally agreed on was to let me hear the cases and divide the money. I agreed, and the process began.

I have served as an arbitrator before and did not foresee any difficulty in resolving this dispute. I like the process. I enjoy hearing the presentation of a case. This was different from other arbitrations I had done, however. Because I was hearing a number of cases, and because there was a fixed pool of money, the process inevitably required that I compare the cases. Rather than simply reaching a decision and making an award, as I have done many times before in other cases, when I increased the size of an award to any plaintiff in this case, it necessarily reduced the amount going to other plaintiffs. Therefore it was essential that I be rigorously consistent, valuing similar elements of damage similarly and giving more weight to some elements of damage than others.

In addition, because the money had already been paid in there was no opposing counsel and, hence, no cross-examination. I simply heard what people chose to present. I was free to ask what questions I chose to ask, to refrain from asking those I chose not to and to draw my conclusions from what was said, what was not said and what I could infer from nuance, body language or life experience.

Arbitrations are never quite as comfortable as mediations, of which I actually do more. There is more responsibility knowing you are acting alone rather than in a jury of twelve. There is even more pressure acting as an arbitrator, I believe, than as a judge sitting without a jury, because, first, the parties have chosen you, where they have probably wound up in front of a particular judge by random chance, and, second, because as an arbitrator, the parties have usually agreed that there is no appeal or even reconsideration. Beyond that, I do not have a court reporter and the ability to go back and listen to testimony again. I am peculiarly dependent on my notes and present sense impression. For this reason I usually dictate notes, or even make a decision, immediately at the conclusion of the arbitration. In this case, I heard presentations over several months, so I was meticulous to take thorough notes and dictate my impressions and thoughts immediately at the conclusion of each presentation. I even kept my dictation so I could listen to it again.

Coincidentally, between the time I was chosen as arbitrator, but before I heard these cases, I attended an ADR seminar where one of the speakers was the chairman of the commission which distributed government compensation resulting from the 911 attacks. I recognized quickly that there was a big difference between the responsibility of the 911 chairman and mine. The 911 commission had no budget. Whatever it awarded, the government paid. There was no limit. Unlike the 911 commission, there was not an unlimited bank account from which checks could be written in my cases.

So these cases had to be parsed in a way that I had never done before, and that juries are not required to do, but it may be instructive to look at the various elements and how they took shape, and priority, in my considerations. With all respect to juries, I doubt that they give as rigorous scrutiny to the elements of damage, in their deliberations, as I did, not through any want of diligence or sympathy, but for the very reason that they are not being required to compare and balance several cases at once.

All of the possible elements of damage were present in the cases before me. Not all cases had every element but all shared some with others. There were deaths, of course. Some had dependents, others did not. Some had demonstrable economic loss. Some did not have proven earning histories. Some had children for whose care they were responsible. Others had distant relationships with children, even small children. All of the dead appeared to have suffered true, excruciating pain and suffering. It is doubtful that any lasted long, but no matter how long, their death must have been agonizing physically, filled with the knowledge that they were very likely about to die.
The survivors suffered emotionally as well. The fear of not being able to escape or be rescued was real. Knowing that there were others who were losing their lives as they were escaping or waiting outside was difficult. Many could hear others screaming, pleading for help. In some cases, these were friends or family members. Injuries varied greatly. Some escaped with relatively minor injuries, some with no permanent damage. Some had breathing or emotional problems, or both, before the fire, but these were made far worse, requiring lifetime care, as a result. A few had inhalation injuries so severe as to be completely disabling, requiring constant treatment, destroying any quality of life.

Because there were deaths involved, the immediate dilemma presented itself of how to compare death, even an excruciating death, with a life of permanent, life-changing disability. There was also the responsibility to weigh death which brought true grief, sorrow and longing to family members, but which had little if any economic impact, against death which deprived of real monetary support and day-to-day nurturing. The loss of relatives who provided no real financial support, even children, had to be contrasted with those on whom the family was truly dependent.
In the many cases I have tried over twenty-nine years, I have always found that juries are sympathetic with plaintiffs who are badly injured or seriously handicapped, but who are, nevertheless, not feeling sorry for themselves, but rather, are striving mightily to overcome, if not ignore, their injuries. I found that I felt the same. As much as I was convinced that there was a true, deep sense of loss among the relatives of the deceased, and that there was very real, even if not prolonged, conscious pain and suffering before death, it was difficult to make a large award in those cases, knowing it was taking money from those who were still alive, desperately needing all the assistance they could get. Their suffering was recognized; their loss was recognized, but there was a feeling that there was little money could do to comfort loved ones who truly grieved. The award of money to these individuals would do no good, serve no purpose, perhaps only cheapen their loss if the award was anything but astronomical.

In the end, my deliberative process confirmed what has always seemed to me to be the case with juries. They want to help those who need it and they want to help those who are trying to help themselves. They do not give away money just because people ask or out of mere sympathy. In my case, conscious of having a limited amount of money to award, it was the people I knew I could help, rather than those who might deserve it, but did not truly need it, who received the larger awards. It was a difficult job. I wished many times that I had the luxury of the chairman of the 911 commission. But in the end, I felt better about the awards, and the manner in which they were reached, than I ever had.

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