Priceless is Not Worthless. (Part II.)

The last entry noted that, in the absence of fixed standards by which to measure non-economic damages, jurors were left to their own devices. I suggested that there were some tools that lawyers and jurors could use to consider valuation of things such as pain, suffering, disability, disfigurement, and grief that were both principled and helpful. This entry will explore some of those tools.

We are accustomed to measuring certain things in dollars and cents. No one has any difficulty determining lost wages or medical expenses; these sorts of economic losses are customarily measured in dollars. The value of a life may be difficult to measure, but the cost of saving a life at a trauma center can be known to the penny! The last words of Queen Elizabeth I, probably apocryphal, have been reported to be: “All my possessions for just a moment of time.” This would lead us to conclude that life, even a few moments of time, are priceless.

It is my contention that both life and time are, indeed, priceless, but that they are not worthless! It is possible to place a value of such things so as to lend dignity to the loss.

A beloved pet or companion animal is worth more than its purchase price or veterinary bills. I am reminded of the plaque in front of a bench along the Seattle waterfront’s Centennial Park my wife and I noticed during our walks through the Sculpture Park that we believe to be in honor of a beloved pet, “Eddie.” (If not, we sincerely apologize to the bereaved, but there was only a single name given.) Many a loving owner willingly spends hundreds of dollars for the care of a pet rescued from the pound or, as with Eddie, in remembrance of good times past. If a villain were to kill your pet on purpose and hand over a fistful of dollars equal to the purchase price or initial vaccinations from the pet store or pound, few of us would regard that as an even trade. Beyond the money, we would find the conduct outrageous!

Few of us would regard it as an “even trade” to suffer an injury through the negligence of another and be paid the medical bills alone. Although the death of a loved one cannot be reversed, it does not follow that the wrongdoer should pay nothing as legal damages. Priceless is not worthless and tort principles of deterrence require that human life be given a value greater than the car totaled in the collision!

What we are really saying is that we are uncomfortable with placing a value on life, time, or quality of life, because it is not a marketplace in which we customarily deal. We find the idea of receiving money for the death of a loved one to demean the ineffable value of that heartfelt loss. The solution, however, is to find a principled method of calculation that lends dignity to the loss, not simply refusing the challenge of valuation by setting the value of human life, human pain, or human dignity at zero!

Michael Sandel, in his recent best seller, “What Money Can’t Buy: The Moral Limits of Free Markets,” explains that there is a robust and burgeoning marketplace for both life and time. Want to attend a Congressional hearing or a Supreme Court argument? It is common practice for some to hire professional “line standers” to wait in line for you. Time is money! Likewise, when it comes to traffic flow, commuters can (increasingly) pay tolls to use “Hot Lanes.” Here in Washington State, the use of SR 520 (Evergreen Point Floating Bridge) and Hot Lanes on SR 167 already allow drivers to pay to save time in their commute in just this way and Hot Lanes are expected to be expanded to I-405 and other freeways.

In the viatical industry, however, author-philosopher Michael J. Sandel explains that investors purchase life insurance policies from the terminally ill, providing the dying with cash for medical care and receiving the proceeds of the insurance upon death. This seems a bit ghoulish since the investor profits from the early demise of the insured, having bought the policy payout at a discount. Increasingly, Sandel notes that the democratic and democratizing ideal of “first come, first served” is yielding to “you get what you pay for!” All human beings have their allotted time and, as Queen Elizabeth I noted, all the possessions in the world cannot cheat death. (I would be remiss in failing to note that money also yields superior medical care which may be able to extend one’s time somewhat, but in the end death is a certainty for all.) Like Sandel, I am concerned that our society is equating willingness to spend one’s wealth to the highest and best use of social resources. A small child spending a day at the ballpark may be more valuable and meaningful for all then a corporation being able to buy skyboxes at the stadium which remain empty. The fact that one can save time by paying for line standers or Hot Lanes or that one can afford superior medical services or better seats in the ballpark may not be the best allocation of social resources. A wealthy person’s time with his family is not necessarily more important than the time of a struggling worker, student, or person looking for work spent with loved ones.

Juries and juries alone can recognize the importance of determining the value of lost health, time, life. I propose that, despite the unusual aspects of setting values to such things, that we do so all the time. When? Whenever we get a paycheck! We are selling our time hour by hour, week by week, year by year and declaring that the compensation we receive is “worth our time.” Commuters in Hot Lanes or choosing a toll bridge over another bridge that is untolled (but more crowded) are saying that even a few moments of time are worth a hefty toll. So, if we can measure time, we can measure life lost or shortened or a loss in quality of time!

So, this is our first tool: thinking of pain as a time-consuming job. We have all had a job that “was a pain.” I am asking you to consider what if your job was “feeling pain.” Suppose I offered to pay you minimum wage in Washington of $9.19 an hour for each hour of pain you received. Remember that this is a bad job: no time off, no benefits, bad hours, interferes with your family time, no weekends, evenings, holidays, time off, or vacations. Oh yes, and you can’t quit, although you can get some relief from the pain with injections, surgery (maybe), or pain-killers that leave you unable to focus or be your best self. Let’s say your work day is 16 hours a day. That is, you have a few good hours in the day and are not aware of pain for 4 hours at night when you are only able to enjoy a fitful sleep. Although the pain disrupts your usual 8-hour sleep, you can get about 4 hours of rest. This means that your “pain”-job is going to pay you $147.04 a day, $1029.28 a week, $53,522.56 a year. If you will experience this pain for the rest of your life, we will want to know your life expectancy and whether the pain will get worse (the job harder) as you get older. A person of twenty might have this job for sixty years, “earning over $300,000.00; a person of sixty might have this job for twenty years or more, “earning over $100,000.00.” Although there is no marketplace for pain, there is definitely a marketplace for time. The fact is that with these hours, lack of benefits, and work conditions, few people would believe that minimum wage was sufficient. It wouldn’t be worth it. Perhaps one’s time “off” – which is what pain takes away – should be valued as much as your work-time. Perhaps, time and a half, double time, hazard pay, or more would be appropriate!

Using this tool, however, lawyers and jurors can think about such things as the intensity of the pain, its disruptive impact on the rest of their life, and its duration. What should the hourly rate be? Should a person be paid time and a half or double time on holidays, evenings, weekends, and lost sleep? Is there hazard pay? What about the lost time and pleasure of carefree time with one’s friends and family? What about the lost satisfaction of a productive job that might have been lost due to the injury? No one would want this job of feeling pain. To do this sort of job, one deserves substantial compensation! Consider also that this job was not one that the injured person volunteered for: it was forced upon the injured person against his or her will as a result of the negligence of the defendant. It is a type of involuntary servitude, subjecting the only thing we have in life, time, to forced labor at the beck and call of a cruel master, pain itself.

In the next entry, we will review some other tools available to help jurors give fair value for the loss of priceless things.

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