Before the Nebraska Supreme Court’s outright approval of per diem arguments in Richardson v. Children’s Hospital, 208 Neb. 396, 787 N.W.2d 235 (2010), I often found myself channeling Oliver Stone’s chain smoking conspiratorial reincarnation of David Ferrie in the movie JFK during my attempts to reconcile the Nebraska Supreme Court’s lengthy (negative) discussion of per diem arguments in Baylor v. Tyrell, 177 Neb. 812, 131 N.W.2d 393 (1964) and the Nebraska Court of Appeals’ ruling in Dowd v. Conroy, 1 Neb. App. 230, 491 N.W.2d 375 (1992). To quote Mr. Ferrie:
Oh man, why don’t you stop it? This is too big for you, you know that? [Is an attorney allowed to use a per diem argument in Nebraska!] It’s a mystery! It’s a mystery wrapped in a riddle inside an enigma! The [judges] don’t even know! Don’t you get it?
For those of you with a trained eye, you will note my removal of Mr. Ferrie’s colorful language even though I may have borrowed a colorful phrase or two during my pre-trial preparations. Richardson seems to have finally resolved the issue; per diem arguments are now fair game.
The Nebraska Supreme Court first addressed per diem arguments in Baylor v. Tyrell, 177 Neb. 812, 131 N.W.2d 393 (1964). Before going on to discuss per diem arguments, the Court specifically noted it would “refrain on passing on [the per diem] question as it [was] not presented in this case.” Id. at 817, 131 N.W.2d at 398. During its discussion, the Court repeatedly discussed the noted flaws with per diem arguments and even referenced some of the flaws as being fatal. Id. The Court, however, approved counsel’s monetary “suggestions” as “flat amounts of recovery for the different areas or categories of pain, suffering, or disability” Id. at 817, 131 N.W.2d at 398, as the particular dollar-amount suggestion is not what is typically critiqued when parties object to per diem arguments. Id. at 818, 131 N.W.2d at 398. Assuming, without deciding, the Court recognized the heart of the criticism of per diem arguments is the use of an arbitrary figure for a time segment that is multiplied over the life expectancy period without respect to whether evidence supports such a figure. Id. The Court noted Plaintiff’s counsel did not suggest an arbitrary figure and did not multiply it over Plaintiff’s life expectancy. Id. Furthermore, the Court cited case law suggesting Plaintiff’s counsel may make lump-sum suggestions for pain and suffering amounts but counsel may not argue how such amounts are to be arrived at by a mathematical formula or on a time-segment basis. Id. at 819, 131 N.W.2d at 398 (citing Affet v. Milwaukee & Suburban Trasp. Corp., 11 Wis.2d 604, 106 N.W.2d 274 (1960)).
The Nebraska Court of Appeals then tackled the per diem issue in Dowd v. Conroy, 1 Neb.App. 230, 491 N.W.2d 375 (1992). Despite counsel’s protestations to the contrary because he had simply performed the math backwards, the Court of Appeals determined counsel’s suggestion that the plaintiff had a life expectancy of 24 years and the jury should award him $24,000, or $1,000 per year, or $3 per day was a pure per diem argument. Id. at 234, 491 N.W.3d at 378. However, because Baylor did not specifically establish law forbidding per diem arguments, the Court of Appeals refused to preclude such an argument. Id. at 238, 491 N.W.2d at 380.