Element of Damage – Pain and Suffering:

Typically, a question most people have in a personal injury case is "what is the value of the pain and suffering?"  Its a good question.  There is no set formula in Texas on how to figure this out.  You have to take each case on its facts to determine what a fair amount would be for that particular case and injury.  The law and what evidence is admissible is helpful in guiding what to look at when trying to evaluate the value of someone's pain and suffering on their personal injury case or claim. 

Law:

A jury may arrive at fair compensation for physical pain based on common knowledge and their sense of justice.  Pipgras v. Hart, 832 S.W.2d 360, (Tex. App.—Fort Worth 1992, writ denied).   The amount for reasonable compensation for physical pain is not to be determined by a set formula, but is for a jury’s discretion.   Some call this element of damage “physical suffering” or “pain and suffering”, but when submitted to a jury it is usually just “physical pain”.  Many times physical pain is mixed with mental anguish as a jury submission.  So often you will hear the term “physical pain and mental anguish” as a single submission for compensation by the jury. 

Evidence:

Just because someone is injured does not necessarily mean there was pain.  Evidence of a) severity of injury, b) what injury was like at scene of accident, c) how painful and frightening the ER treatment was, d) fear of death, e) pain – loss of sight after surgery, f) loss of self-esteem causing a reclusiveness all were sufficient evidence to give an award for physical pain / mental anguish.   Future pain and suffering evidence can be sufficient if it shows that the person is still suffering up to the time of testimony. 

How to Prove:

Lay witnesses (friends, family, neighbors, co-workers) are people who are not experts.  A lay witness’ testimony regarding physical pain is able to testify and give their factual observations to the physical condition they witnessed on the person with the injury.

One method that was not allowed was when a plaintiff’s lawyer asked the jury to feel the shoulder of the injury to demonstrate how it was injured.  The court held this was intended to inflame the minds of the jury.   But on the other hand, plaintiffs generally are able to show parts of their body that are injured, such as if you have a swollen ankle or other part of the body where the injury is visible.  Photographs of the injury are admissible.  The plaintiff themselves may testify, as may their doctor or others who participated in treating or witnessed the effects of the injury.