Empirical Analysis of Tort Damages

This article examines the procedures for determining damages in tort cases and assesses the empirical characteristics of these damages. Damages for economic loss involve noncontroversial economic concepts that seek to make the victim whole from a financial standpoint. Nevertheless, there is often substantial disagreement over issues such as the selection of the discount rate. Awards for noneconomic damages are more problematic, as the jury instructions are less precisely specified, and these are losses for which most people would not choose to purchase insurance. Such damages may constitute more than half of the total award, as in the case of medical malpractice. Awards for hedonic damages based on the value of statistical life are inappropriate measures for determining compensatory damages even when loss of enjoyment of life is a damages component. The article uses data by case type from the Civil Justice Survey of State Courts to provide assessments of total damages, noneconomic damages, and trends in damages from 1992 to 2005. The article also presents data on damages by type of personal injury