finding that the court cannot “conclude as a matter of law that a jury will ignore the court's instructions to award a reasonable amount as compensation for the plaintiff's pain and suffering and that it will inevitably choose an indefensible course of slavishly following counsel's suggestions on damages, merely because he asserts in argument that such compensation should be measured on a ‘per diem’ basis”
How later courts described this case
- finding that the court cannot “conclude as a matter of law that a jury will ignore the court's instructions to award a reasonable amount as compensation for the plaintiff's pain and suffering and that it will inevitably choose an indefensible course of slavishly following counsel's suggestions on damages, merely because he asserts in argument that such compensation should be measured on a ‘per diem’ basis”
- recognizing that “[o]ne of the most difficult tasks imposed upon a jury in deciding a case involving personal injuries is to determine the amount of money the plaintiff is to be awarded as compensation for pain and suffering. No method is available to the jury by which it can objectively evaluate such damages, and no witness may express his subjective opinion on the matter.”
- where evidence as to liability is in sharp and substantial conflict, and the damages awarded are so grossly inadequate as to indicate a compromise, case should be remanded for a retrial of both
- full discussion of current decisions and literature
Written by the judges who cited it.
The opinion
TRAYNOR, C. J.
I concur in the judgment. In my opinion the trial court committed prejudicial error in refusing to allow plaintiff’s attorney to state to the jury his monetary estimate of an appropriate award for pain and suffering. Since the jury must convert pain and suffering into dollars and cents, counsel should be permitted to advance any reasonable argument as to what its decision should be. Since there is no mathematical formula for such conversion, however, an argument that the jury should use such a formula is suspect, and an argument that damages for pain and suffering should be computed at so much per unit of time is so misleading that it should never be allowed. (See Seffert v. Los Angeles Transit Lines, 56 Cal.2d 498, 509, 513-514 [ 15 Cal. Rptr. 161 , 364 P.2d 337 ], dissenting opinion.) It is one thing to urge that in view of all of the evidence of pain and suffer-
*184 ing including its total duration, some specific sum or range of sums is. reasonable. It is quite another to urge the jury to use a formula such as a mill or penny per second, or penny or nickel qr dime per minute, or $10 or $20 or $100 per day. None of these formulas appears unreasonable on its face, for there is no basis in human experience for testing their reasonableness. For ¿"year of pain and suffering, however,, they yield damages ranging from $3,650 to $315,360, sums that in the light of all of the evidence in particular eases might appear to be grossly inadequate or grossly excessive. It is therefore, unrealistic to seek an appropriate award for pain and suffering by the use of any so-called!.'per diem formula.. Only after counsel has determined how much damages for pain and- suffering he is going, to ask for can he select a per diem ratio to support his request. He could arrive at any amount he wished by adjusting either the period of time to.be taken as a measure or the amount surmised for the pain ¿nd suffering for that period. It is no answer that the question-begging in his reasoning may be exposed by counterargument or challenged by an equally Active formula leading to a different result. Truth is not served by sophistic arguments or clashes between them. (See Seffert v . Los Angeles Transit Lines, 56 Cal.2d.498, 509, 514 [ 15 Cal.Rptr. 161 , 364P.2d 337], dissenting opinion.)