Chang, Eisenberg, Ho and Wells, ‘Pain and Suffering Damages in Wrongful Death Cases: An Empirical Study’

Most jurisdictions in the United States award pain and suffering damages to spouses of victims in wrongful death cases. In several East Asian countries, spouses, parents, and children of the victim can all demand pain and suffering damages. Despite the prevalence of this type of damages, and the oft‐enormous amount of compensation, there has been no large‐scale empirical study on how judges achieve the difficult task of assessing pain and suffering damages. Using a unique data set containing hundreds of car accident cases rendered by the court of first instance in Taiwan, with single‐equation and structural‐equation models, we find the plaintiffs’ ad damnum has a statistically significant influence on the court‐adjudicated pain and suffering damages. That could be evidence for the anchoring effect. Nevertheless, courts are very sensitive to the possibility of pushing defendants into financial hardship. When defendants’ out‐of‐pocket payments of pecuniary damages, divided by defendants’ income, are positive, this amount has a negative effect on the amount of pain and suffering damages, whereas when they are negative (this could happen because the amount of compulsory insurance payment had to be deducted), the amount in absolute value has a positive effect. Not all next‐of‐kin received the same amount. Spouses of the victim received more than other next‐of‐kin, and adult children received the least among eligible relatives. Parents, however, tended to be awarded a high amount of pain and suffering damages when they were the only familial group suing the defendant.

Chang, Yun-chien and Eisenberg, Theodore and Ho, Han‐Wei and Wells, Martin T., Pain and Suffering Damages in Wrongful Death Cases: An Empirical Study (March 2015). Journal of Empirical Legal Studies, Vol 12, Issue 1, pp 128-160, 2015.

First posted 2015-02-21 10:32:11

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