33 Compensatory Damages

Villa v. Derouen Court of Appeal of Louisiana, Third Circuit (1993)
(614 So.2d 714)

[Recall the fact pattern from this case covered in Module 2 under Intent.]

Villa sustained second degree burns to his penis, scrotum, and both thighs. He was first seen by Dr. James Falterman, Sr. on May 8, 1986, who hospitalized him from May 8, 1986, through May 16, 1986. Dr. Falterman testified that Villa was reasonably comfortable, with pain medication and treatment, within three (3) to four (4) days and, at a maximum, within one (1) week after the accident. Villa’s physical wounds healed completely, with some depigmentation, but no functional disability. He was discharged from treatment of his burns as of June 20, 1986.

Villa complained of being nervous and depressed on May 15, of 1986, and requested to see a psychiatrist. Villa was referred by Dr. Falterman to Dr. Warren Lowe, a clinical psychologist, who first saw Villa on June 9, 1986. Dr. Lowe diagnosed Villa as suffering from atypical anxiety disorder with depressive features together with some symptoms of post-traumatic stress disorder. At the time of trial, Dr. Lowe felt that Villa was getting better and was capable of entering a rehabilitation program.

Dr. Lowe’s partner, Dr. Jim Blackburn, was offered as an expert in psychiatry. He saw Villa in August of 1986 and again, saw Villa and his wife on January 26, 1988. He diagnosed Villa as suffering from a major depression with some elements of post-traumatic stress. He felt that Villa was a very good candidate for rehabilitation and believed that Villa would make a good recovery and be able to resume a normal functional life. At the time of trial, in April of 1990, Villa had not, as yet, returned to work and remained nervous about returning to work.

Total medicals paid by Liberty Mutual, the worker’s compensation insurer of M.A. Patout and Sons, Inc., Villa’s employer, up to the time of trial were $14,300.00.

Glenn Hebert, a vocational rehabilitation specialist, testified that Villa was ready for and would need several years of rehabilitation counseling and/or retraining to build up his self-esteem and self-respect, and to recover from his loss of trust in people. He testified that a vocational school would cost approximately $2,000.00 for two (2) years, while concurrent counseling would cost about $900.00 per month, which would total $21,600.00 for twenty-four (24) months of counseling. This would total $23,600.00 for rehabilitation. Hebert also testified that Villa needs to go to work but would recommend conditions where he can work part-time, alone or with one other person.

Dr. Cornwell, an expert economist, testified that Villa has suffered a $57,907.00 loss of earnings from the date of the accident until trial. This figure is based upon an annual pre-accident wage of $14,772.00 per year. If Villa works, as recommended by Hebert, for twenty-five (25) hours per week at $4.25 per hour, assuming a two (2) *720 year rehabilitation period, he would have an additional loss of $18,500.00.[1]

At the time of the accident, Villa was earning $5.75 per hour and should be able to earn that or more with the benefit of two (2) years of rehabilitation. Thus, Villa’s total special damages would be:


Loss of wages:


Total Rehabilitation



We find that a reasonable general damage award for Villa’s past and future physical and mental pain and suffering would be $60,000.00.


The jury’s verdict finding that Michael Derouen did not commit an intentional tort is hereby reversed.

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Eusebio Villa and against Michael Derouen and Louisiana Farm Bureau Mutual Insurance Company, Derouen’s homeowner insurer, in the amount of ONE HUNDRED FOURTEEN THOUSAND THREE HUNDRED SEVEN AND NO/100 ($114,307.00) DOLLARS in special damages and SIXTY THOUSAND AND NO/100 ($60,000.00) DOLLARS in general damages. Judicial interest and costs at trial and on appeal to be paid by Michael Derouen and Louisiana Farm Bureau Mutual Insurance Company.

Note 1. The role of insurance companies can be significant in both the liability and damages phase of trial. What is the significance of the insurance company’s role in this case?

Note 2. What do you observe about the determination of special versus general damages? Damage determinations are not meant to be binding on subsequent courts. Courts are guided, of course, by evidence the parties submit regarding damages. However, in some sense, courts or juries come up with the final award amounts “from scratch” in each case since they do not start with prior verdicts or rulings. Courts and trial lawyers may also consult something called a “Schedule of Loss” used in each state to determine the compensation under Workers Compensation claims. It typically lays out the guidelines and amounts for typical injuries so that each time a person suffers a catastrophic loss of a thumb or leg, for instance, the calculations of impact on a person’s life do not have to begin entirely anew. The loss schedules will require actuarial adjustment and tailoring to a given case, and they may not be admissible directly, depending on the case and jurisdiction. But they may nonetheless play a role in shaping litigation strategy and outcomes.

The aim of “making the plaintiff whole” reflects tort law’s compensation principle, as well as the fiction that money can ever really achieve such a goal. Money damages are usually a very distant second-best option. Even assuming a good-faith desire to try to restore to the plaintiff the state they were in before the tortious conduct, the question of how to do that possesses its own complexities, logistically, and philosophically. What gets counted, who measures and proves that, and what sorts of socioeconomic assumptions and biases influence the process? All of these considerations come to bear in the following FTCA case featuring a woman who was negligently dispensed with a drug that quickly led to her death.

Zuchowicz v. U.S., United States District Court, D. Connecticut (1996)
(Not Reported in F. Supp.) (1996 WL 776585)

*1 Plaintiff, Steven F. Zuchowicz, brought this wrongful death action as Executor of the estate of his deceased wife, Patricia Zuchowicz, under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (“FTCA”). Plaintiff alleged that his wife developed primary pulmonary hypertension (“PPH”) and died as a result of ingesting an excessive amount of the drug Danocrine, dispensed to her at the Naval Submarine Base Naval Hospital in Groton, Connecticut.

This matter was tried to the Court for 16 days principally on the issue of proximate cause.[2] At trial, defendant conceded that its agents or employees negligently prescribed an overdose of Danocrine to the plaintiff’s decedent but denied that this negligence caused her to develop PPH. On July 8, 1996, the Court issued a Memorandum of Decision entering Findings of Fact and Conclusions of Law pursuant to Fed. R. Civ. P. 52(a) finding that plaintiff met his burden of demonstrating that defendant’s negligence caused the decedent’s PPH. The Court instructed the parties to file supplemental briefs regarding damages.

Plaintiff seeks damages for medical and funeral expenses, plaintiff’s decedent’s conscious pain and suffering, lost wages, lost earning capacity and compensation for destruction of life’s enjoyment. In ruling on the damages to be awarded plaintiff, the Court incorporates its Findings of Fact and Conclusions of Law dated July 8, 1996.

Under the FTCA, damages are determined in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b). Here, the law of Connecticut governs the issue of damages, specifically Conn. Gen. Stat. § 52-555, which creates a cause of action belonging to the decedent during her lifetime which passes to the executor or administrator by right of survival. [***]

Section 52-555 provides in relevant part that an executor or administrator, “may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses….” “Just damages” include: (1) damages for lost earning capacity less deductions for taxes and necessary living expenses, and discounted to present value; (2) damages for conscious pain and suffering; and (3) compensation for the loss of the capacity to enjoy life’s activities in a way the decedent would have had she lived. [c]

There is no mathematical formula or ironclad rule for assessing damages in a wrongful death case. Id. at 657. The trier of fact is required to take all of the evidence and make an intelligent estimate of the appropriate damages. [c] Since no one life is like another, comparing damage awards from other wrongful death cases serves no useful purpose: “the damages for the destruction of one furnish no fixed standard for others.” Id. at 661.

Medical and Funeral Expenses

*2 The parties stipulated at trial that plaintiff incurred funeral and “noncovered” medical expenses of $29,203.51. By the phrase “noncovered,” the Court is referring to medical expenses not paid by CHAMPUS, Mrs. Zuchowicz’s medical insurance carrier. Based on the parties’ agreement and the reasonableness of this amount, the Court will award funeral and non-covered medical expenses in the amount of $29,203.51.

Lost Wages

Plaintiff seeks lost wages in the amount of $15,193.46 for the time period between February 18 1989, when Mrs. Zuchowicz was prescribed Danocrine, and December 31, 1991, the date of her death, approximately 34.5 months. Plaintiff arrives at this amount of lost wages by calculating Mrs. Zuchowicz’s average monthly earnings for the years 1987 and 1988 and multiplying this figure by 34.5 months.

Defendant argues that there is no evidence before the Court to reasonably infer Mrs. Zuchowicz’s past wages. To the contrary, the record reveals that Mrs. Zuchowicz was a high school graduate and attended community college for less than one year. In 1987, after training, she became a nurse’s aide working both full-time and part-time hours until January 1989. Also, prior to trial the parties stipulated in their proposed stipulations of fact (doc. # 143) that Mrs. Zuchowicz’s earnings for 1987 and 1988 were $4301.14 and $6268.16, respectively. These amounts average out to $5,284.65 per year or $440.39 per month. Finally, Mrs. Zuchowicz testified that she was physically incapable of continuing her work as a nurse’s aide after February 18, 1989.

This evidence is sufficient guidance for the Court to determine lost wages. Proof to a mathematical certainty is not required; only evidence that lays a foundation from which the factfinder can estimate a proper award. Delott v. Roraback, 179 Conn. 406, 411 (1980). The Court finds appropriate damages for lost wages in the amount of $15,193.46.

Lost Earning Capacity

In determining a proper award for lost earning capacity in a wrongful death case, the court must inquire into a decedent’s capacity or capability to obtain gainful employment at the time of their death and for the remainder of their life. The court may take into consideration the decedent’s earnings history, qualifications and experience. From this amount the court must deduct decedent’s probable income tax liability, personal living expenses, and discount the award to its present cash value. …

Plaintiff has submitted with his brief on damages, the U.S. Department of Health and Human Services, Public Health Service, National Center for Health Statistics, Vital Statistics of the U.S., Vol. II, Sec. 6, as applied in 1988. The Court takes judicial notice from these statistics that plaintiff’s decedent, a white female of 31 at the time of her death, had a potential life expectancy of 49.2 years and a work life expectancy of 34 years, or until age 65.

*3 Plaintiff seeks damages for lost earning capacity in the amount of $89,839.05. In arriving at this amount, plaintiff assumes a base lost earning capacity of $179,678.10 ($5,284.65 per year X 34 years). This base amount does not take into account any potential savings from increased earnings or inflation. Plaintiff has then reduced this amount by half to account for potential income tax liability, discounting to present value, personal living expenses and any likelihood that Mrs. Zuchowicz may have left the workplace to care for her children. The Court finds that this is a fair estimate and awards damages for lost earning capacity in the amount of $89,839.05.

Pain and Suffering

Plaintiff seeks $1,040,718 for Mrs. Zuchowicz’s pain and suffering from February 18, 1989 to December 31, 1991. Plaintiff calculates this award based on the amount awarded by this Court in Parkins v. United States, 842 F. Supp. 617, 619-621 (D. Conn. 1993), another FTCA case. However, as the Court noted earlier, comparing awards in other cases serves no useful purpose.

An award for pain and suffering is appropriate in a medical negligence case where evidence has been presented in support. [***] Here, damages for pain and suffering are appropriate.

When initially taking Danocrine, Mrs. Zuchowicz experienced night sweats, a racing heart, chest pains, dizziness and headaches. During the summer of 1989, she continued to have fatigue and chest tightness and pain and began experiencing shortness of breath, which became progressively worse. Mrs. Zuchowicz was diagnosed with PPH in October 1989 after a nine-day hospital stay and several tests, including a pulmonary artery catheterization. She was told she would need a heart and lung transplant. She was treated with Procardia XL, a calcium channel blocker, to which she responded well.

Although aware of her diagnosis and treatment, she testified that she did not learn that her disease was terminal until several months later when she read Dr. Michael Shea’s memorandum dated October 14, 1989. This report stated that Mrs. Zuchowicz’s prognosis was very poor and that death commonly occurred in patients with PPH within 2-3 years of diagnosis.

After an extensive evaluation and medical screening at the Cleveland Clinic in June 1990, Mrs. Zuchowicz was put on a lung transplant list. She was also informed at that time that she could suffer a sudden death. She underwent counseling to assist her in coping with her condition.

Mrs. Zuchowicz testified that during this time she was able to avoid physical pain and breathe without significant difficulty by limiting her physical activity and avoiding humid conditions. She was unable to participate in any sports activities as she previously had or even climb stairs. She could do light housekeeping, read and garden. In May 1990, she and her husband took a trip to Atlantic City and, several months later, they took a foster child into their home.

*4 Despite past problems with infertility, Mrs. Zuchowicz became pregnant in March 1991. Her physicians advised her that the pregnancy would exacerbate her illness, reduce her lifespan and temporarily disqualify her as a candidate for a lung or heart transplant. During her pregnancy, Mrs. Zuchowicz suffered from numerous complications. While in her third trimester, she began to get increasingly short of breath and blacked out as many as five times a day. On November 21, 1991, Mrs. Zuchowicz delivered a baby boy by Cesarian section approximately 4 ½ weeks early.

On December 17, 1991, Mrs. Zuchowicz’s pulmonary condition worsened and she was admitted into the Cleveland Clinic on December 20, 1991, in the hopes of undergoing a single lung transplant. While hospitalized Mrs. Zuchowicz experienced among other things, nausea and hallucinations as well as depression over her inability to care for her child. Her condition became progressively worse and on the morning of December 31, 1991 she was intubated. She died later that afternoon.

Taking into account all of the above factors, the Court finds that an award of $350,000.00 is reasonable compensation for Mrs. Zuchowicz’s pain and suffering.

Loss of Life’s Activities

Plaintiff seeks an award of $4,930,493 for Mrs. Zuchowicz’s loss of life’s activities, specifically in enjoying her marriage and rearing her son. This amount is again based on the amount awarded in Parkins.

Determining damages for the loss of life’s activities “with any exactness is … beset with insurmountable difficulties. The law, nevertheless, undertakes to do justice as best it can, although of necessity crudely.” Lane v. United Elec. Light & Water Co., 90 Conn. 35, 37 (1915). Damages are essentially limited to the probable length of life of the deceased had she not died. The trier must also consider the extent to which the “ordinary vicissitudes of life” would have likely affected the decedent’s continued enjoyment of her life. Chase v. Fitzgerald, 132 Conn. at 469.

By having a child, Mrs. Zuchowicz was able to fulfill her dream of becoming a mother. Due to her untimely death, she was deprived of participating in the rearing of her son. She was also unable to continue her relationship with her husband which, despite many difficulties in the past, became closer during her illness.

The Court finds that damages in the amount of $550,000 is an appropriate award to compensate for Mrs. Zuchowicz’s loss of life’s activities.

Based on foregoing [sic], damages shall be awarded in the following amounts:

Medical and Funeral Expenses $29,203.51
Lost Wages $15,193.46
Lost Earning Capacity $89,839.05
Pain and Suffering $350,000.00
Loss of Life’s Activities $550,000.00
Total: $1,034,236.02

The Clerk is directed to enter judgment in favor of plaintiff accordingly.

Note 1. In your estimation, does tort law take a reasonable approach to determining damages associated with loss of enjoyment of life, and loss of companionship? These so-called “hedonic damages” are intended to try to put a dollar value on the pleasures of a life lived without the intrusion of tortious injury. What occurs to you about how they seem to operate, and what do you think they fail to capture?

Note 2. The court notes that “[b]y having a child, Mrs. Zuchowicz was able to fulfill her dream of becoming a mother. Due to her untimely death, she was deprived of participating in the rearing of her son.” What do you think of the court’s reasoning here? Does it seem unreasonable to plan for a pregnancy and a child in light of significant, known health complications (even if these have been induced by someone else’s tortious conduct)? Who should be accountable for her inability to accept a lung transplant when it became available? Is this an eggshell plaintiff type of situation? Or does it seem reasonable to wish to impose limits on such a pregnancy on the basis of tort law? Did Mrs. Zuchowicz have a duty to mitigate here, even though she was the victim of wrongdoing?

Does the court’s rhetoric reflect any bias, in your view? Do you think that the ruling would have come out the same way, and/or sounded the same in rhetoric and tone, had a same-sex couple taken great pains to fulfill a dream of becoming parents, with the same basic facts in the background? Should it matter whether parties dream of becoming parents or not, when tabulating and allocating damages? If the opinion can be accused of naturalizing a heteronormative view of the world with fixed notions of gender (e.g. women dream of having babies; it’s tragic if they can’t), should we worry about whether courts will misalign with a world in which gender increasingly needs to be understood as fluid? Should gender roles continue to be allowed to carry the same weight and meanings as they may once have, in light of present understandings of gender? What can tort law do to address such concerns and questions?

The case was upheld on appeal, Zuchowicz v. U.S., 140 F.3d 381, 391-392 (1998). The court made only the briefest mention of her pregnancy: “Mrs. Zuchowicz was on the waiting list for a lung transplant when she became pregnant. Pregnant women are not eligible for transplants, and pregnancy exacerbates PPH. Mrs. Zuchowicz gave birth to a son on November 21, 1991. She died one month later, on December 31, 1991.” Id. at 384.

  1. $14,770.00 pre-accident annual wage offset by $5,524.00 per year earned equals an annual loss of $9,250.00 per year.
  2. Editor’s Note: the trial took “16 days principally on the issue of proximate cause.” If you’re wondering why we talk about burden-shifting mechanisms, shortcuts to establish negligence, and–most crucially—about whether to limit liability as a matter of duty (Palsgraf’s majority) versus doing so as a function of proximate cause (Palsgraf’s dissent), this is it, in a nutshell. Facts are resource-intensive to litigate, and juries are resource-intensive to empanel and instruct. 16 days of trial is a long, expensive thing to engage in even when there’s a really compelling case involved.

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