One of the mysteries of the law is how to value the loss of a body part.  It seems that the public assumes there’s a chart somewhere that puts a price tag on a limb, a finger, an ear.  The notion that a bunch of people are expected to sit in a room and, with no greater help than a couple of lawyers telling them that it’s the most/least consequential thing in the world, arrive at a number seems crazy.  And yet, that’s how it happens.

Via Eric Turkewitz at his ever-excellent New York Personal Injury Law Blog, and John Hochfelder’s very thorough  New York Injury Cases Blog, a 32-year-old single woman lost a breast to a modified radical mastectomy.  Except she didn’t have cancer.  Oops. Sorry. The jury was asked to value her loss.

 A Bronx jury found malpractice and awarded her $3 million for past pain and suffering and $3.5 million for future pain and suffering extending over 41.9 years.

The judge found that excessive.

The trial judge then directed a new trial as to damages unless the plaintiff stipulated to a reduced total award of $1 million.

One might suspect that the judge just wasn’t a breast man, but they would be wrong.  The judge was Cynthia S. Kern, and would presumably appreciate the impact of this needless loss to a young, single woman.  Not so.

On appeal, the Appellate Division, First Department  affirmed the reduction of the jury award by 3-2 split.

And a divided panel agreed with the trial judge and set the limit for such a case at $1M. There was a furious dissent by Judge James Catterson, who agreed that while the verdict was excessive, also believed that the $1 million award substantially undervalued the emotional trauma of such an incident to a 32-year-old single woman.

Why the dispute? Because in the words of the majority:

The dissent’s suggestion that plaintiff must have suffered extreme emotional distress is not supported by the record.

Not supported by the record? There was no question that the woman lost her breast unnecessarily. The jury saw photographs. Some injuries are abundantly obvious. And yet, the majority simply accepted the defendants’ argument that there is no proof of future pain and suffering because the plaintiff did not testify extensively about her emotional distress. In other words, if you don’t state the obvious, the court will toss your verdict.

No doubt lawyers who do personal injury day in and day out are inured to the whims of judges screwing with their awards.  And it’s not hard to appreciate why judges need to rein in the jury that awards $10 billion for a broken finger nail. 

But this case not only smacks of micromanaging verdicts, but requiring plaintiffs to go nuts in creating a record of the obvious.  Is there any question about how the needless loss of a breast to a young, single woman will affect her emotionally?

In dissent, Justice Catterson wrote:

I agree with Ms. Williams that in reducing the jury verdict, the court undervalued the profound emotional and psychological damage arising from the loss of a healthy breast and the resultant severe disfigurement of her upper and lower torso, photographs of which are included in the record.

Profound? You bet.  So what exactly would the majority have demanded of her in the record to “prove” she suffered “extreme emotional distress”?  Is it possible they are that unfamiliar with boobs?

It’s common in personal injury cases that plaintiffs lawyers explain the obvious, that a person can no longer engage in normal activities as a result of an injury.  They will go through a litany of questions about the things the plaintiff will never again do in order to help the jury to appreciate the loss.  When it involves loss of consortium, they may put a spouse on the stand to humiliate himself by explaining in embarrassing detail the sex life he will never again enjoy.

But here, the record was sufficient for a jury to award $6.5 million dollars for the loss.  The jury understood what it meant to the plaintiff to lose a breast.  Everyone understands what this means.  Unless you’re a judge.

Moreover, the majority’s view that the plaintiff’s extreme emotional distress is not supported by the record clearly indicates that the majority has not viewed the photos in the record. Given the post-operative photos of the plaintiff, I believe any testimony by the plaintiff as to distress, for example, over not being able to wear a bathing suit; or of her fears of never finding someone to love or desire her would be simply superfluous, if not overkill.

My take is that the appeals court’s reduction of the award had nothing to do with the record, and everything to do with the majority deciding that 1 breast = $1 million.  They have to provide a rationale for their decision, though it doesn’t have to bear up to scrutiny.  Do these guys really think they have a firmer grasp on the significance of this loss to the plaintiff than the jury?  Even if one thinks the jury award was outside the realm of reality, was this monumental reduction justified?

Only if there’s a chart somewhere that says how much a breast is worth to a young, single woman.  What’s the value of a justifiable fear that she will never find love?  It’s got to be on the chart, somewhere.

For anyone who contends that the system is out of control, that jury awards are astronomical and it’s just one big lottery, ask yourself (or your significant other) what it would be worth to lose a breast to some surgeon’s monumental screw up.  I wonder if the thought passed through the majority’s head as they decided that it wasn’t worth much.