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On Thursday, September 29, 1998, Sam Brown parked his car in front of Bob's Bikes on Main Street in his hometown. Little did he know that a bizarre sequence of events was about to occur that would tragically alter the rest of his life. It was 4:45 p.m. on a sunny, fall afternoon, and Sam was dropping his son's bike off for repair. He got out of the car, put a quarter in the parking meter, and then went to the rear of the car to remove the bike from the trunk. As he opened the trunk, he heard the screeching of tires and turned around just in time to see a car careening out of control as it came around the corner. In that split second, he realized that the car was going to crash into him, but he had no time to move. The front bumper of the oncoming car nailed him against the rear bumper of his own, crushing both of his legs below the knees. A policeman on the corner who had witnessed the accident immediately called for an ambulance and Sam was rushed to the hospital, fully conscious, and in terrible pain. Over the ensuing months, Sam suffered through multiple operations, including bone grafts, skin grafts, muscle reattachments, neurological corrections, and multiple debridements. Bone, tissue and skin were removed from various parts of his body to reconstruct his devastated legs. The fact that he retained his legs, instead of becoming a double amputee, was a medical miracle. Prior to the accident, Sam was a healthy, athletic 30-year-old high school teacher with a 6-year-old son. Sam and his 26-year-old wife were attempting to have a second child. The defendant driver of the car that hit Sam was 24 years old, and upon being taken to the hospital was found to have a blood alcohol reading of .211. Due to the fact that the defendant was driving a corporately owned vehicle, and was on corporate business at the time of the accident, insurance coverage was not a problem in the litigation. Because the accident was witnessed by a policeman, and the blood alcohol test of the driver clearly showed readings in excess of the legal limits, there were no liability problems. Sam was legally parked and was legally standing in a position behind his car removing a bicycle from the trunk. He had every right to be where he was and in no way could it be construed that he contributed to his own predicament. The case just described is fictional in its details, but it is based upon a similar Halpern Group case in which the resulting injuries were identical. In evaluating it from a legal perspective, the liability is excellent and the damages are self evident, at least as far as the special damages are concerned. The problem lies, as with the actual case it is based upon, in demonstrating to the jury the full extent of the intangible damages, specifically: how do you compensate the plaintiff for the physical pain, emotional suffering, and the loss of the enjoyment of life? This article explores an innovative process of evaluating physical pain so that a jury can understand and empathize with the pain sufficiently to make an appropriate award. It is commonplace to hear lawyers use the term "pain and suffering" as though it were a description of one thing. But "pain" and "suffering" are two different, though related, matters. The easiest way to understand the difference is to describe "pain" as a physical sensation, which can vary from the unpleasant to the unbearable. "Suffering," by contrast, is the individual's emotional response to the physical sensation and the incapacity resultant from the injury. It is important to separate the two because all too often, in trial or in negotiation, we have a tendency to represent them as only one item of damages, requiring a particular level (generally arbitrary) of compensation. The problem for the plaintiff's trial attorney is to influence the thinking of either the claims administrators for the defendant or, if necessary, the jurors, in such a way that they can fully appreciate and empathize with the sensations felt by the injured party.
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