The victim or injured plaintiff, himself or herself, may be the best person
to testify in a case about their own level of pain and suffering. However,
due to certain biases of defense counsel and others, a smart Plaintiffs’
California Personal Injury lawyer will not rely on a single source for pain and suffering evidence.
Consider the case of an injured plaintiff with a shockingly mutilated and
distorted physical injury. The injured plaintiff testifies that he or
she endured mental suffering caused by the injuries. During his or her
testimony, he is asked to describe his injuries. He or she answers, physical
pain, anxiety for fear that the injuries may prove so permanent and disabling
as to render him or her incapable of supporting his or her family, grief
that his or her disfigurement may humiliate and make him or her an object
Now consider the case of an injured plaintiff with an internal injury such as a
spinal injury or
traumatic brain injury. Such injury is not shocking from mere observation of the injured plaintiff.
Defense counsel might suggest that the injured plaintiff’s life
was not altered in any way as a result of the injury or that the person
has not suffered any pain and suffering.
Pain and suffering is defined as physical pain, mental suffering, loss
of enjoyment of life, disfigurement, physical impairment, inconvenience,
grief, anxiety, humiliation, and emotional distress that occurred as a
result of an injury caused by the negligence of another.
California Civil Code section 1431.2 defines pain and suffering under California
law as non-monetary losses including, but not limited to, pain, suffering,
inconvenience, mental suffering, emotional distress, loss of society and
companionship, loss of consortium, injury to reputation and humiliation.
No fixed standard exists for deciding the amount of these noneconomic damages.
A jury must decide a reasonable amount of damages for pain and suffering
based on the evidence and their common sense. Injured plaintiffs can recover
for past and future pain and suffering.
In addition to the testimony of the injured plaintiff, alternative sources
of proof of pain and suffering must be analyzed early in the case to ensure
that such evidence gets before the jury at trial.
A spouse or significant other can sometimes offer testimony about the injured
plaintiffs’ behavior or appearance useful in assessing damages for
pain and suffering. For example, a spouse can testify that the injured
plaintiff wakes up night after night with cries of pain from his or her
injury. Additionally, a spouse or significant other can provide corroboration
of the injured plaintiffs’ inability to perform the same daily tasks
as he or she used to be able to perform and also how that has affected
the injured plaintiff mentally and emotionally. Other witnesses can and
will sometimes offer similar testimony.
Hospital records drafted by physicians or nurses for treatment purposes,
or notes in the office of the treating physician(s) may corroborate the
fact that the injured plaintiff experienced pain and/or suffering.
Nurses' notes are also a rich source of information about the injured
plaintiff's suffering. Frequent requests for pain medication, poor
appetite, tears, and anxiety recorded by a nurse may support and corroborate
plaintiff's testimony about the nature of that pain and distress.
Additionally, medical records showing that pain medication were prescribed
and that the injured plaintiff took the medication, are also evidence
that the person experienced pain.
Doctors and nurses are usually an excellent and believable source of information
about pain and suffering injured plaintiffs have experienced before trial.
As for future pain and suffering, expert testimony is essentially indispensable.
The Jury’s observation of the injured plaintiff in court may be some
of the most powerful evidence of pain and suffering to a jury at trial.
Even in the absence of any explicit evidence showing pain, the jury may
infer it if the injury is such that the jury, in its common experience,
knows that such an injury would normally be accompanied by pain.
If you or someone you love has been injured in an accident, please
Contact Us for a free consultation.