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Date: Fri, 14 Jul 2006 12:47:27 -0400 (EDT)
To: Daniel Reeves <dreeves &AElig umich.edu>
cc: improvetheworld &AElig umich.edu, soule-dingle &AElig umich.edu
From: Kevin Lochner <klochner &AElig eecs.umich.edu>
Subject: Re: abuse of "pain and suffering"?
Status: O

what's the right way to think about how you should be compensated for pain 
and suffering?  Clearly "what would you have paid to not have this happen" 
isn't the right question, since that would mean poor people would be 
compensated less for injury, but I see that as a lower bound on the 
number.  The point of insurance is for accidents, not for striking 
people in the face with golf clubs.  I would have a different opinion if 
bethany were taking money out of the man's pockets for her pain and 
suffering, but he's insured and clearly she's suffering more than 
lost wages.  I'm guessing the attorney will have a better grasp of the 
legal theories underlying these damages.


On Fri, 14 Jul 2006, Daniel Reeves wrote:

> Let's discuss by email and just have poll results on the whiteboard. 
> (Updating whiteboard now -- pasting responses below for the improvetheworld 
> archives.  The original email is below if you missed it.)
>
> Quick responses:
> Yes, the lawyer is a kind and decent one (in fact, a fellow cyclist, 
> recommended highly by the bike club president) who has offered to deal with 
> the baseline insurance claims -- hospital and bike -- for Bethany pro bono 
> and who did not push in the slightest for anything in the JUSTICE argument 
> (which in fact was all me).
> The "nine iron" hypothetical was purely a mental exercise to decide on what 
> the right amount might be.  If the answer is "infinity" then all the more 
> reason to get something rather than nothing.
> The point about future expenses (like dental) is a really good one.
> I don't know about other charges against the driver.  Maybe Bethany can 
> reply about that (I know she can only type one-handed -- the hand with the 
> broken thumb! -- so far though.)
>
>
> Snapshot of the straw poll at 
> http://ai.eecs.umich.edu/people/dreeves/wb/cycling
>
>  THE ANTI-LITIGATION ARGUMENT:
>
> Rob Felty - although I am not totally against litigation, I think that my 
> opinion is different enough from the rest to justify putting it under 
> anti-litigation.  I am opposed to suing for pain and suffering, because I 
> feel that it is not possible to quantify in terms of dollars (or yootles for 
> that matter -- I do think that desires can be quantified, but I think it is 
> more difficult to quantify pain and suffering). I would be in favor of suing 
> for lost compensation, medical expenses, etc., which certainly are 
> quantifiable. From my understanding, most insurance already covers lost 
> compensation to some extent in these cases, though if one earns quite a bit 
> of money, it would probably not cover it. I also disagree with Danny's 
> example of allowing one to get hit in the face with a nine iron. This is 
> completely different, because of the intentions involved. As others have 
> said, this was clearly an accident, and not done with intent.
> Other parameters to consider. I do believe that the people who profit the 
> most from such cases are the lawyers. Also consider that frequently the 
> monetary amount of these cases is frequently highly influenced by the wealth 
> of the person being sued. And I think that many lawyers probably try to 
> convince their clients to sue for as much as possible. Also consider the time 
> and energy spent in suing someone. This gets down to the details. If one 
> feels that $10,000 is an appropriate amount to sue for, and the case would be 
> settled in two months, it seems worth the trouble. If one only sues for 
> $1,000 and the case takes two years, then it does not seem worth it to me.
> All that being said, it is ultimately Bethany's decision, and I will support 
> whatever that is, should she choose to make it publicly known. And I hope 
> that she recovers fully, and I am very angry at the person who hit her.
>
>  THE JUSTICE ARGUMENT:
>
> Matt Rudary - To me, this is not even a difficult question. This situation is 
> precisely the reason that these types of damages were introduced in the first 
> place. As Danny's analysis indicated, Bethany's loss here is more than just 
> the dollar amount on the hospital bills. Clearly, asking for an amount that 
> is enough to set Bethany up for a life of luxury would be inappropriate. But 
> some amount between $10k and $10M would be reasonable and just.
>
> JMM - Bethany suffered a greater loss than the $$ cost of hospital etc. Pain, 
> fear that may affect the way she lives her life in the future, etc. There is 
> good reason to believe that this was not mere chance, a roll of the dice: the 
> driver did not exercise reasonable caution, performed negligently, and thus 
> is the direct and responsible cause of Bethany's loss.  It is reasonable to 
> ask that the loss be compensated.  It is socially responsible, and efficient 
> (because of incentives) for people to be the reasonably forseeable costs of 
> their own actions.  (There is also a good social argument for *punitive* 
> damages as a deterrent for other drivers, but usually imposing that 
> punishment is the role of the state. Do you know if the county prosecutor is 
> contemplating filing charges for criminal negligence or reckless endangerment 
> or some such?)
>
> KML - I second jeff's opinion and think matt's lower bound is too low.
>  reply by Matt: I agree, I just took the numbers from Danny's e-mail.
>
> Dave - I'd definitely ask for something, though not millions of dollars, or 
> even hundreds of k. At an absolute bare minimum, compensation for lost wages 
> from time off work, and compensation for time in general spent at the 
> hospital etc. More reasonably it should also include some additional for pain 
> and suffering. Maybe it's not reasonable to say that there's a price where 
> you'd actually agree to being hit by a truck, but maybe there's a point where 
> post-facto the unhappiness of having had to go through it all is balanced by 
> "but hey, check out the sweet giant screen plasma television I bought to 
> watch movies while I was recouping" or some such. Or "check out my sweet new 
> hybrid car".
> The ideal solution would be to come to some rational agreement to such with 
> the driver and settle everything out of court without involving lawyers and 
> letting everything get thus inflated. But since the money is likely coming 
> from the driver's insurance rather than his pocket, this may not be possible. 
> You'd probably have to convince the insurance company that if they don't come 
> to a reasonable settlement out of court then they will be facing a huge 
> lawsuit, even if in reality it's not worth going through. Unless, of course, 
> the corporate machine of the insurance world tried to deny you anything 
> reasonable because they could, in which case my instinct changes to wanting 
> to not let them get away with that, since via intimidation of random folks 
> they probably usually do.
>
> CK - I would think that above and beyond medical bills, missed pay for work, 
> bike replacement costs, and costs for her caretakers' travel expenses and 
> missed work there should be some other compensation for her loss.  When I was 
> visiting, I saw that the man who hit her had sent her flowers with a note 
> that basically said "Sorry for the inconvenience". I believe it was a sincere 
> gesture, with the wrong choice of words. While he is an older man, that does 
> not give him the right to less strict penalty for his actions.  We all know 
> he didn't hit Bethany on purpose and so that makes it difficult to 
> rationalize punishing him, however, I think it is important that we teach a 
> lesson to all drivers about operating their vehicles around bicycles.  In his 
> case, I believe he should have his license taken away.  Someone THAT 
> oblivious to what is going on should not be on the road - innocent grandpa or 
> not.  I do feel for him, as he may not have a lot of money or health 
> insuarance himself because of our country's disrespect for the health of the 
> elderly who are not well-off, but nonetheless, this should not be taken 
> lightly. My impression is that this will not be stopping Bethany from going 
> out again, allbeit with extra caution, but it is impossible that this 
> experience would not affect her psychologically in some way.
> No matter how brave she is (and she is very), this qualifies as a traumatic 
> experience that would not have happened if it weren't for a negligent driver. 
> Therefore, I vote for justice.  I have NO idea how to place an amount of 
> money on this, as I don't know the extent of the medical bills, etc., but I 
> would imagine they are over 10k themselves.  I suppose that is what a lawyer 
> is for. One more point: while I agree that our country has gotten out of hand 
> about lawsuits, this is QUITE different from someone falling on the freshly 
> mopped floors of Meijer and it is clear that Bethany is not out to make money 
> due to her misfortune.  She deserves justice, however.
>
> Monica - I agree with Dave, but Insurance companies plan on people suing 
> them.  They hire entire teams of lawyers just for this.  There could be 
> future complications and surgeries after the statute of limitations runs out; 
> there could be scars, or more permanent damages.  Along with lost wages, 
> there should be compensation for the other things Bethany would be doing in 
> lieu of recovering, and all possible future problems need to be accounted for 
> in an initial law suit. Also, there is nothing Bethany did to instigate this. 
> Its very different from suing the surgeon who messed up breast implants. 
> Somebody broke the law (running a stop sign), and severely hurt an otherwise 
> healthy person.  I guess it comes down to what price can you put on enjoyment 
> of life? Paying for you to have an extra luxury in the future is the way 
> insurance companies say they are sorry.
> If this accident had been the other way around: If Bethany had been 
> recklessly driving a truck and hit a grandfather on a bicycle (or in a 
> wheelchair), his injuries would probably have been more severe, or he would 
> have died.  This could have resulted in a vehicular manslaughter charge, loss 
> of license, and insurance would have paid his family for their emotional loss 
> (far more than the price of the bike and hospital bills).
>
> Eugene - as an economist-wannabe, I would certainly agree with Danny, Chris, 
> Jeff, and others, thereby putting me in the "justice" bracket. However, I 
> feel that several things need to be taken into consideration here also. First 
> of all, do we really believe that punitive measures stop reckless drivers? In 
> theory, they certainly should if drivers are rational. But then again, I 
> suspect that anyone (or at least most people) who hits a pedestrian is 
> probably going to go through some emotional trauma as a result. At least I am 
> sure I would.  Not to say, of course, that they shouldn't be held responsible 
> for their actions, but to suggest that perhaps the problem isn't 
> fundamentally about incentives (unless punishments are extremely severe). 
> Second, we often hear about the "jerks" who take advantage of the legal 
> system. I'd like to suggest that perhaps many of them go through the same 
> cognitive process as us right now, reaching perhaps the same conclusions. And 
> since it's very difficult as an outsider to tell whether they are merely 
> rationalizing their actions or genuinely pursuing the same agenda as us, 
> perhaps we should be careful judging other lawsuits.  Finally, the question 
> of what is just in a given situation is a patently difficult one. After all, 
> justice is frequently another name for revenge.  Having said all this, I 
> certainly believe that pain, suffering, and lost wages require compensation. 
> The real question is, how much...
>
>
>
>> You've checked with a lawyer to see what options you have in Michigan?
>> 
>> Anyway, with injuries of this sort I think there's a reasonable potential
>> for long-term problems, particularly dental.  I think it would be
>> appropriate to try to obtain some amount of money as a buffer for that, 
>> plus
>> for Bethany's opportunity costs.
>> 
>> If she finds this morally ambiguous, she can always put the money away, 
>> only
>> using it for injury related costs and bestow it on some worthwhile charity
>> later in life when it's clear she'll no longer bear any costs associated
>> with the accident.
>> 
>> -Brian
>> 
>> On 7/14/06, Daniel Reeves <dreeves &AElig umich.edu> wrote:
>>> 
>>> Here are two points of view on whether Bethany should ask for more than
>>> just reimbursement for the hospital bill plus cost of her bike.  Please
>>> chime in with your opinion!  It could be very influential.
>>> 
>>> The ANTI-LITIGATION argument:
>>>    No, this represents the worst of what's wrong with this country.  Don't
>>> use elaborate rationalizations for being a greedy opportunist cashing in
>>> on misfortune.  This kind of lawsuit is an absolutely massive drain on
>>> society, both in wasted money and in missed opportunities / paranoia
>>> ("sorry, we can't do that for liability reasons").  Don't be a part of it!
>>> 
>>> The JUSTICE argument:
>>>    Asking for much more than the actual hospital and bike costs is the
>>> morally right thing to do.  Agreed that abuse of the legal system (or the
>>> brokenness of the system itself) is a huge and despicable problem.  It
>>> would be wrong, for example, to go for punitive damages.  But asking the
>>> driver to redress your pain and suffering and lost productivity (if not
>>> done disingenuously) is absolutely legitimate.  As we know from yootles,
>>> these have a measurable price. If the driver (bear with the absurd
>>> hypotheticalness of this) asked you if he could smash up your face with a
>>> nine iron for 10 million dollars, you'd say yes (assume of course ex post
>>> analysis, ie, knowing the surgery would succeed, etc).  If he offered 10
>>> thousand, you'd say no. (Adjust the spread if I'm presuming wrong.)
>>> Somewhere in between is the fair and just amount he should give you.
>>>    The difference between this and greedy opportunists is a fundamental
>>> one.  The difference between "you ran a stop sign and smashed my face in
>>> with your truck" and "I slipped in your grocery store" is as clear as day.
>>> There are a lot of selfish assholes abusing the concept of liability but
>>> that doesn't mean you have to err on the other extreme, refusing to hold
>>> someone fully liable for life-and-death negligence.
>>> 
>>> 
>>> Straw Poll here:
>>>    http://ai.eecs.umich.edu/people/dreeves/wb/cycling
>>> 
>>> --
>>> http://ai.eecs.umich.edu/people/dreeves  - -  search://"Daniel Reeves"
>>>
>>>   If God dwells inside us, like some people say, I sure hope he
>>>   likes enchiladas, because that's what He's getting!
>>>     -- Jack Handey
>>> 
>> 
>
> -- 
> http://ai.eecs.umich.edu/people/dreeves  - -  search://"Daniel Reeves"
>
>   Last night I lay in bed looking up at the
>   stars in the sky and I thought to myself,
>   "Where is the ceiling?!"
>