No Pain, No Gain? Explaining Pain and Suffering

No Pain, No Gain? Or is it more like, No Pain, No Payout? When injuries occur on the water, vessel interests face not only operational disruption but also legal exposure that is subjective, variable, and increasingly costly. While you cannot show a receipt for a sleepless night or a scarred psyche, these damages can make a splash, often dwarfing the cold, hard numbers of medical bills and lost wages. 

Unpacking Pain and Suffering 

At its core, ‘pain and suffering’ refers to a type of non-economic damage. It is the physical pain, emotional distress, and loss of enjoyment of life resulting from an injury. Unlike out-of-pocket expenses, pain and suffering is not tied to price tags or pay stubs, making it harder to quantify and easier to inflate. 

These non-economic damages compensate for pain and mental anguish arising from the physical injury. They encompass past and future anguish, emotional distress, and disfigurement. To recover for pain and suffering, a plaintiff must provide evidence such as medical records and expert testimony, and prove that the injury impacted their life and mental health. 

Importantly, some maritime statutes are decidedly stingy with respect to what is recoverable. Pain and suffering damages under the Jones Act are not given out like life rings in the way that ‘maintenance and cure’ damages are. Instead, a seaman can only recover non-economic damages if employer negligence is proven. Further, a pain and suffering claim fails altogether under the Death on the High Seas Act (DOHSA). DOHSA prohibits recovery of all non-economic damages.  

Evaluating the Claim 

Assessing pain and suffering damages is a complex and nuanced process, particularly in maritime claims. Think of it as math class meets art school. US courts have developed specific methods for calculating these intangible losses, aiming to strike a balance between fairness and the challenge of putting a dollar sign on someone’s subjective experiences. The analysis is like assembling a ship in a bottle: detailed and tricky. Some key considerations are: 

• Severity and duration of pain: Courts examine how intense the physical pain is and how long it persists. Chronic pain that disrupts daily activities or requires ongoing medical intervention is likely to justify a higher award. The defense will scrutinize a claimant’s medical history when investigating this factor. The strenuous nature of maritime work in general, and the toll it takes on the body, also adds a wrinkle to the analysis. 

• Impact on daily life and future employment: The extent to which the injury limits a person’s ability to carry out everyday tasks, hobbies, or work responsibilities is carefully assessed. Permanent disabilities or serious injuries that hinder career prospects are particularly significant. Ongoing surveillance and an in-depth review of work history are generally used by the defense to check these allegations.  

• Psychological effects: Emotional distress, such as anxiety, depression, or post-traumatic stress disorder, can make up the bulk of a claim. A tribunal will consider medical diagnoses and testimony regarding these mental health impacts. Defendants frequently hire medical experts of their own to determine the merits of any psychological damage claim. 

• Credibility of medical and mental health evidence: The strength and reliability of medical records, expert witness statements, and documentation play a major role. Well-supported evidence lends greater weight to a claimant’s case. Likewise, medical experts and independent medical exams are vital tools in defending against these claims. 

• Jurisdiction: The location where the case is tried can influence the size of the award, as some states have reputations for higher or lower compensation. Maritime cases are frequently tried in a federal forum. Federal courts are almost always more favorable to the defense than state courts, however, so a plaintiff typically does everything within its power to have damages tried before a state court jury. 

Steering Clear of a Nuclear Verdict 

There has been a recent surge in nuclear verdicts. The magnitude of these jury awards are often fueled by emotional arguments and aggressive plaintiff tactics. Techniques such as the ‘reptile theory’ (appealing to a juror’s sense of public safety) and per-minute suffering calculations are increasingly common. Unsurprisingly, pain and suffering tends to be the largest component of these awards. 

To reduce exposure, vessel interests should try to do the following: 

• Document everything: Incident reports, maintenance logs, and safety records are critical. All evidence should be preserved for a reasonable time period to avoid arguments of spoliation. This also prevents a ‘he said, she said’ situation from arising. 

• Invest in safety culture: Courts scrutinize training, supervision, and prior incidents. The P&I Club’s loss prevention team of experts can assist in facilitating a safe culture by providing feedback and guidance to Members in this area. 

• Engage legal counsel early: Pre-trial strategy matters, especially in high-risk jurisdictions. The P&I Club will appoint legal counsel as soon as appropriate to ensure vessel interests are adequately protected. 

• Consider alternative dispute resolution: Settlements can be more predictable and cost-effective than a full trial. Mediation provides more control over the outcome for both parties to the lawsuit. Resolving the matter through mediation or arbitration is often the typical and preferred avenue for both sides. 

• Use contracts wisely: Forum selection and arbitration clauses may help limit exposure and streamline litigation. Whenever practical and possible, vessel interests are encouraged to incorporate these clauses into their agreements. 

Turning the Tide 

Navigating the treacherous waters of alleged pain and suffering isn’t for the faint of heart, apropos the sentiment ‘no pain, no gain’. However, by understanding how to evaluate and handle these claims, defendants can reduce the risk of excessive awards and protect their operations. Indeed, vessel interests should certainly tap into their P&I Club resources, maintain good records, and establish a safe vessel environment. With these tools in their arsenal, defendants can turn the pain of litigation into the gain of a sound resolution.