Tackling the measurability problem of physical pain in personal injury cases: The case for remembered pain and for disregarding race and gender.

摘要

This dissertation offers several novel perspectives on the longtime measurability problem of physical pain in personal injury cases.;This dissertation builds on empirical studies that demonstrate that, when assessing a painful experience in hindsight, people do not integrate the momentary states they had experienced in real-time. Rather, two moments of a painful episode---peak pain and end pain---primarily form the memory of the pain. Furthermore, studies have shown that the overall trend and velocity of the pain influence the way pain is remembered. In strike contrast, the duration of pain has virtually no influence on remembered pain. These empirical findings have at least one implication for tort damages. Should pain-and-suffering damages compensate a victim for his remembered pain or real-time pain? These two measures of pain can lead to different awards. The position taken in this dissertation is that remembered pain, and not real-time pain, ought to be the focus of pain-and-suffering damages.;In addition, recent empirical evidence has shown that women, as a class, exhibit greater sensitivity and lesser ability to withstand pain than men do, as a class. Furthermore, blacks and whites, as classes, have been shown to perceive pain differently, with blacks showing greater sensitivity to pain and lower tolerance to pain. These findings conjure up the question, whether the race or sex of the victim should be factor in deciding pain-and-suffering damages. The argument made in this dissertation is that these personal characteristics should be excluded from the formula to value pain since blacks and women may be stigmatized as being weaker and inferior to white men.;Finally, this dissertation tackles the thorny issue of translating pain into money. I propose valuing pain using the willingness-to-pay formula, according to which jurors would ask themselves what is the maximum sum of money that a reasonable person would have been willing to pay to eliminate the risk of ending up with the remembered pain sustained by the plaintiff. This formula is superior to previous proposals because it focuses on the harm of the victim and on the ex ante probability that the harm would take place.