What Damages Can Accident Victims Recover?

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We have all heard stories reported by the media about colossal settlements and “runaway” jury verdicts in personal injury cases. The McDonald’s hot coffee case is one that pops into everyone’s mind as being excessive. The purpose of this article is to explain what losses someone may recover, and the factors and mechanics involved in deciding whether to negotiate a settlement or go to trial.

In New Jersey, when a person is injured or suffers loss of life, there are two types of damages upon which settlements and jury verdicts are based. These are economic damages and non-economic damages.

Economic damages are those losses which can be reduced to a certain sum. Good examples of economic damages are medical expenses and loss of earnings. If a person visits a doctor ten times and each office visit costs $100.00, they have suffered damages of $1,000.00.

Another example of economic damage is loss of earnings. An accident victim who cannot work for a period or one who can never return to work is entitled to economic damages. Economic damages for loss of earnings are reduced by disability payments and 20% for federal taxes.

The more challenging type of damages to recover is non-economic damages. Losses such as past, present, and future pain and suffering, loss of enjoyment of life, disability and permanent injury are examples of non-economic damages. These are qualitative damages as opposed to quantitative damages because they cannot be calculated in accordance with a fixed formula to produce a certain sum.

Calculating non-economic damages depends upon a multitude of factors. Who was at fault for the accident in question? What is the defendant’s version of the accident? Is the plaintiff partially negligent? What are the specific physical injuries claimed to be caused by the accident? Are the claims supported by objective medical evidence or merely subjective complaints? Did the plaintiff suffer broken bones or need surgery?

If it is an automobile accident case, is the plaintiff subject to the “limitation on lawsuit threshold” or “no limitation”? Will the jury view the plaintiff as credible, sympathetic, angry, or evasive? Are the interruptions in the plaintiff’s activities of daily living describable with compelling testimony? Was the plaintiff involved in any prior accidents where they suffered an injury to the same part of the body? Are there underlying medical conditions which can account for the plaintiff’s present complaints? How old is the plaintiff? Could the plaintiff’s job cause wear and tear to his or her body consistent with the lingering accident pain?

What is the opinion of the defendant’s doctor concerning whether the injuries claimed are related to the accident or whether the injuries claimed are permanent? In what county is the lawsuit filed? The factors to be considered are endless.

There are two paths to pursue the recovery of economic and non-economic damages. One is to settle a case without filing a lawsuit. The other way is to file a lawsuit and prepare the case for a trial. A smaller personal injury case may have a reasonable chance of settling with the responsible party’s insurance carrier without filing a lawsuit. However, more complicated cases will require a lawsuit before an insurance company will pay what a case is worth.

Once a lawsuit is filed, it can take, post-pandemic, as much as three years to resolve it. The Rules of Court give the parties about one year to do all the legal work necessary to find out about the claims and the defenses being made. This is called the “discovery” period. Discovery has different techniques and methods, the most common of which are completing questionnaires about the claims and defenses (called interrogatories), securing the plaintiff’s medical records by proper medical authorization, depositions, and medical examinations.

After discovery is completed, the lawyers begin to evaluate a case for what economic and non-economic damages can be proven. This enables them to recommend whether their client should settle or go to trial.

Damages are measured by predicting how a jury will decide the case at hand. This requires asking more questions. How have juries decided similar cases? Has the defendant’s insurance company made a fair offer?

While the factors are numerous and complex, the following hypothetical question should always be asked: If a case is tried ten times, how many times will a jury award a sum less than the offer, how many times will the jury award a sum in the range of the offer and how many times will the jury award more than the offer? Finally, what are the out-of-pocket costs incurred to date to prosecute the case, and what is the cost of presenting expert witness testimony at trial?

In conclusion, almost all personal injury cases are resolved by settlement or jury awards without much fanfare. The big settlements and verdicts that we hear about are reported because they are interesting and prompt discussion. However, these awards can create unrealistic expectations for legitimate accident victims. In New Jersey, there are only a handful of “million dollar” each month.

Gerald D. Siegel & David A. Siegel are the principals in Law Offices Siegel & Siegel, P.C. established in 1989. The firm represents the victims of accidents who suffer harm due to the fault of others in cases arising from motor vehicle crashes, falls, construction accidents, dog bites. as well as accidents occurring at work (Workers Comp). The hallmark of the firm is providing seasoned and experienced representation, along with treating each client with dignity and compassion during their difficult times. Click here for more information.

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