Republished with Permission © 2009 Nolo.
Learn the types of damages you can get in defective product liability claims.
If you have been injured or suffered other damages because of a product you used, you may have a defective products claim. One of the most important aspects of evaluating a products liability claim is determining what types and amounts of damages you have suffered.
It's important to estimate your damages up front because if your injuries are minor and your financial losses are minimal, it may not make sense to spend the time and energy to prosecute your claim. In addition, the smaller your potential damages, the less likely you are to find a lawyer to represent you (unless the product has caused widespread problems, in which case you may be able to join with other potential plaintiffs in a class action lawsuit -- a juicy proposition for plaintiffs' lawyers).
On the other hand, if you have large amounts of damages, it’s important to catalog and list them at the beginning of your lawsuit -- otherwise you risk not getting them at the end.
The term "damages" is legalese for a sum of money paid to the plaintiff in a lawsuit either to compensate for an injury or loss or to punish the defendant for wrongdoing. Though there are many different types of damages, they are all ultimately reduced to a dollar amount that the defendant must pay to the plaintiff.
All damages fall into two basic categories: compensatory damages and punitive damages. Below is a brief summary of each type. (Because products liability law is governed by state law, the type and amount of damages you can ask for depends on where you live. But the basic categories of damages are similar from one state to another.)
The purpose of compensatory damages (sometimes called actual damages) is to compensate plaintiffs for their injuries -- in ther words, to restore the injured plaintiff to the condition he or she was in before the injury occurred. Compensatory damages do this by attaching a dollar value to each of the bad things that happened to the plaintiff as a result of the injury.
Although it may not be possible to truly return the plaintiff to his or her pre-accident condition, as in the case of a permanent injury, compensatory damages provide the plaintiff with a sum of money that is deemed to be "equivalent" to the value of the injury.
There are two categories of compensatory damages -- those that compensate for economic losses and those that compensate for non-economic losses.
Economic losses, sometimes called "special damages" or "monetary losses," refers to money or property that the plaintiff lost or missed out on because of his or her injury. There are many types of economic losses. Here are a few of the most common ones.
Medical expenses. This includes bills from a doctor, hospital, pharmacy, physical therapist, and so on. If your injury will require ongoing medical care, you should include a demand for future medical expenses to cover those costs as well.
Cost of disability. If your injury requires that you change your lifestyle in some way, you may be entitled to any expenses you incur in making those adjustments. If, for example, you need to hire someone to perform household chores or you have to renovate your living space to accommodate a loss of mobility, you will want to include these costs in your demand for compensation.
Loss of wages or profits. If you missed work because of your injury, you will want to include a demand for any lost wages. If you own your own business, you may be entitled to compensation for lost profits. If your injury is likely to keep you from work in the future, you will want to include a demand for loss of future wages or profits.
Property loss or repair. If the defective product in your case caused the destruction of your property, you may be entitled to the cost of repair or replacement.
Non-economic losses, sometimes called "general damages" or "non-monetary losses," compensate plaintiffs for those aspects of an injury that are more difficult to quantify, such as physical or emotional suffering. Pain and suffering and loss of consortium are the two most common examples of non-economic losses.
Pain and suffering. You may be entitled to compensation for the pain, anguish, or loss of enjoyment of life resulting from your injury. Attaching a dollar figure to pain and suffering may seem a little barbaric, but it is standard practice in personal injury cases. Lawyers often look to the amount awarded for similar injuries in past cases to estimate the value of a given injury, but given the intangible nature of pain and suffering, the size of such awards often varies greatly from case to case.
Loss of consortium. If your injuries have a negative impact on your relationship with your spouse, you may be entitled to compensation for loss of consortium. Sometimes called "loss of society," this includes everything from sexual relations to companionship, emotional support, and loss of affection. In such cases, your spouse may also have a claim for loss of consortium.
In many cases, compensatory damages are the only form of damages awarded. If, however, a judge or jury finds that the defendant has acted particularly badly, you may also be entitled to punitive damages.
The purpose of punitive damages, sometimes called "exemplary damages" (derived from the idea of making an "example" out of a defendant), is to punish the defendant and to deter others from engaging in similar conduct. Punitive damages are roughly analogous to a fine.
Just because the defendant manufactured or distributed an unreasonably dangerous product, marketed a product in a misleading way, or otherwise acted negligently does not necessarily mean you are entitled to punitive damages. Such damages are awarded only if a court or a jury decides that the defendant's conduct was especially egregious or outrageous. States often use terms such as "malicious," "reckless," or "oppressive" when defining conduct that can give rise to punitive damages.
Punitive damages are calculated based on the nature of the defendant's misconduct in relation to the defendant's wealth. For example, in a products liability case regarding a new drug, a punitive damage award might be much larger if the defendant is a huge pharmaceutical manufacturer as opposed to a small start-up company. That’s because a one-million-dollar award may be devastating to a small start-up company, whereas the same amount might be met with a shrug by a huge manufacturer. The idea is to make the defendant feel the punishment in proportion to its misdeeds.
Some states put limits on punitive damages; for example, limiting the amount of punitive damages to no more than four times the amount of compensatory damages. This is a high-profile and rapidly changing area of the law.
Once you have identified all of the possible damages you have suffered from the defective product, keep the following additional points in mind when making your claim.
Include all types of damages in your complaint . Be sure to spell out all the various types of damages when you file your lawsuit. This increases the potential value of your case, making it more attractive to plaintiffs' attorneys (who often work on contingency fees) and may increase the amount of money you will get if you win the lawsuit. It's important to ask for these damages up front. If you don’t ask for them in your initial complaint, you may not be able to ask for them later.
Include expenses for which you have already been reimbursed. Include any expenses -- such as medical bills or lost wages -- for which you have been or will be reimbursed separately by your medical insurance or your employer. If you win your case, both your medical insurer and your employer can ask you to pay them back using the money you won in your lawsuit (this is called a subrogation claim).