Tort Damages Recoverable in Alabama Personal Injury Cases
I. Commonly Claimed Tort Damages/Methods of Proof
A. Introduction
Tort damages are those damages that proximately flow from of a civil wrong by one or more tortfeasors. Typically, we are referring to damages to the person, not property damages or injunctive relief. However, medical bills and lost wages that result from the physical injury to the plaintiff are properly considered to be “tort damages” as well.
Listed below are the most commonly claimed personal injury damages and how they are presented and “proved” at trial. Section Two of this paper addresses some of the ways in which they can be effectively portrayed at trial.
B. Tort Damages Commonly Claimed
1. Is It Related?
Before you make a claim for a personal injury, make sure it can be related to the tort itself. Generally speaking, a physician must testify that the injury is “probably” related to the accident/tort. That it is “possibly” related or “could be” is insufficient. However, if there are other factors, such as the injury occurring close in time to the accident or tort, causation may be established.
Opposing attorneys frequently seek to cross-examine the doctor by using the “reasonable degree of medical certainty” language. This is not and has never been the standard in Alabama law as it pertains to “proving” an injury.
2. Permanent Injury/Disfigurement
This item of damage is self-explanatory. Some physical injury has produced a condition that is permanent in nature. Examples of such an injury include: quadriplegia, traumatic brain injury, amputations, scarring, surgery resulting in the placement of hardware or a decreased range of motion, decreased vision, muscle damage, etc.
With all tort damages, make sure they are specifically pled in the Complaint. Even under Alabama’s liberal pleading rules, tort damages/injuries should be pled with particularity to avoid problems at trial.
With any permanent injury, the deposition of the primary treating physician should be taken after the plaintiff has reached maximum medical improvement. Prior to the deposition, a narrative request should be sent to the physician seeking a prognosis and any resulting numerical, impairment ratings (e.g. 15% to the body as a whole). During the course of the deposition, any work restrictions placed on the plaintiff should be addressed for future use by your vocational expert if you intend to claim lost wages.
3. Pain & Suffering
This is really the flip-side of the coin from mental anguish. Pain and suffering can result from either a permanent or a non-permanent injury. In physical injury cases, it is presumed that pain and suffering has and/or will manifest itself as the result of a physical injury. Unlike a permanent injury or physical impairment, no expert testimony is needed to establish pain and suffering (although it certainly does not hurt).
The measure of damages for pain and suffering is up to the discretion of the jury. It will not be subject to reduction by an appellate court absent a showing of passion or prejudice by the jury.
4. Mental Anguish
Traditionally, mental anguish damages could only be recovered under a tort theory. A similar recovery under a breach of contract theory was allowed only in those limited situations where it was foreseeable that the breach would necessarily result in emotional anguish and a disturbance of solicitude.
Under common law there had to be a physical injury before mental anguish damages could be recovered. Recent case laws allows such damages even when no actual physical injury is claimed.
Recent case law has significantly narrowed mental anguish recoveries in non-physical injury situations. In White Consol. Indus., Inc. v. Wilkerson, 737 So.2d 447 (Ala. 1999), the Court ruled that a plaintiff could not recover mental anguish damages under the Alabama Extended Manufacture’s Liability Doctrine where only property damage occurred. They even admitted that the claim was based in tort.
A mere four months earlier, the Court affirmed a $2 million dollar verdict for a mortuary company in which there was no physical injury to the widower of the decedent. Gray Brown-Service, Inc. v. Lloyd, 729 So.2d 280 (Ala. 1999). In Lloyd, the Court focused on the burden of proof rather than the recoverability of mental anguish damages itself. Apparently, mental anguish is presumed in cases involving solicitude of the deceased.
In K-Mart v. Kyles, 723 So.2d 572 (Ala. 1998), the Court flatly held that a physical injury is not a prerequisite to a recovery for mental anguish (apparently following Taylor). However, they adopted a “strict scrutiny” standard that essentially requires a non-physically injured plaintiff to take the stand (or have a friend or psychologist to take the stand) and testify as to her mental anguish. A more recent case has reaffirmed the principle that the strict scrutiny approach does not apply to cases involving physical injury. Daniels v. East Alabama Paving, Inc., 1999 WL 359410 (Ala.).
5. Lost Wages
Lost wages are simply those wages or income that are lost as a direct result of the inability to work. The use of an economist, while not necessary, is invaluable when the injury is catastrophic in nature.
If lost wages are claimed in the future as well, the use of a vocational expert is usually advisable. If the plaintiff is disabled, simply extrapolate the total wages expected to have been earned (but for the injury) to age 65, and multiply it by the vocational disability to determine the lost wages. For example, if the plaintiff has an 87% vocational disability, simply multiply it by the total amount plaintiff would have earned in the remaining years in the work force.
If lost wages are claimed, the defendant will seek to discovery and is entitled to copies of the plaintiff’s tax returns. Make sure the amounts claimed at trial are consistent with pre-injury wages and not “over-reaching”, or you and your client will lose credibility.
6. Medical Bills
This is a tricky area. One would expect to simply mark the bills and offer them into evidence. It is much more vigorous than that, however.
There are essentially three (3) requirements for “proving” medical bills at trial: (a) authentication, (b) reasonableness, and (c) necessity.
Authentication is usually fairly easy. Either have your client testify he received the bill, have the primary physician identify the bill in deposition, or have it subpoenaed to the courthouse for trial, properly sealed and attested to by the hospital custodian.
The reasonableness hurdle is usually handled by the practitioner by deposing the physician whose services necessitated the treatment. Although, defense attorneys religiously object to a doctor asserting that a hospital’s bill is “reasonable”, it is admissible and competent evidence.
Remember, the plaintiff can not testify as to the reasonableness of the bills. The Court has long required expert testimony on this issue. As a result, I always list the custodian of the hospital as an expert witness to be called at trial so I do not have any problems with the bills’ admittance into evidence.
The “necessity” requirement is easy. Simply ask the treating physician(s) whether his treatment (and the hospital’s) was “medically necessary”. He will be more than happy to deny that he performed unnecessary surgery on your plaintiff.
Briefly stated, punitive (or exemplary) damages are recoverable when there is clear and convincing evidence of oppression, malice, wantonness or fraud. Ala. Code §6-11-20. Of course, punitive damages are allowed in wrongful death cases under a theory of simple negligence.
Generally speaking, I do not advise seeking punitive damage if you have a weak case because you are asking for an appeal and a remittitur. Juries will usually “beef-up” the compensatory damages in lieu of awarding punitives.
