The Baylor and Dowd decisions set the stage for the Nebraska Supreme Court’s opinion in Richardson v. Children’s Hospital, 280 Neb. 396, 787 N.W.2d 235 (2010) and Nebraska joining the majority of Courts which approve per diem arguments in one form or another. In Richarson, Plaintiff made a blatant per diem argument. During Plaintiff’s closing, counsel stated to the jury “[Y]ou have to consider the shortest life expectancy…[which] is twenty-eight years…So you can consider only that period of time for the loss here. And one measure [Plaintiff’s counsel] can come up with…[is] $35 a day for the inconvenience of rearranging your schedules for taking time out of your life to do something different. $35 a day for twenty-eight years is $357,000. 280 Neb. at 409. When assessing the impropriety of Plaintiff’s per diem argument, the Court determined there is no rule in Nebraska forbidding per diem arguments or suggesting mathematical equations for calculating pain and suffering. Id. at 410. Thus, the Court declined to find any error in Plaintiff’s closing argument. Id.
Based on the Court’s ruling in Richardson, the Defense Bar will certainly see an increase in the application of arbitrary numbers to a fixed period of time to calculate a desired amount of general damages of sought by a plaintiff regardless of the relationship of the arbitrary number to plaintiffs pain and suffering. For instance you may hear a closing argument which contains something similar to this:
Ladies and gentlemen of the jury, my client is employed in a job for the remainder of his life. A job he never applied for, a job he can never quit. As you heard from the medical testimony, his new job duties include enduring pain, discomfort and inconvenience for the rest of his life because of a strain to his neck. My client has been placed in this new job he can never escape due to the irresponsibility of the defendant. It is now time to make the defendant accept responsibility for his careless actions and provide my client with general damages which compensate him for the pain, discomfort and inconvenience he will be saddled with for the rest of his life. What is that worth? Well, my client is expected to live for another 35 years. That will be 12,775 days of pain, discomfort and inconvenience. How should you value that? There is not fixed rule, but I would suggest you consider the cost of a Husker football ticket. What is that? About $54 a game now? That would be a good number, $54 a day. That works out to $2.25 an hour. Well less than minimum wage for a job he does not want and a job he can’t quit. That ladies and gentlemen would be a total award of $689,850. It sure seems like a big number when you add it up, but please consider the fact that my client will have to work at this job of pain, discomfort and inconvenience without any breaks ever and, for that reason, you should award him this amount.
Regardless of the arbitrary nature of the argument (which you should note and object to on the record), how are you going to respond to this closing argument when it is allowed by the trial court? We will cover that in Part III.