Let’s not mince words. Setting noneconomic damage caps is the equivalent of setting the value of human life. To do so requires that some very difficult questions be answered.

Are all human lives valued equally? I know most religions and even our founding fathers believed all men to be created equal. But do our lives remain equal, or can their value increase or decrease based upon our actions? If we accept that the value of a human life is determined at least in part by the actions of the person, then we must reject damage caps because of two possible dangers of comparison. First, there is the danger of determining damages based upon comparative measurements of people. I’m proud of my life and what I’ve accomplished, but I know my accomplishments pale in comparison to true heroes, such as our astronauts, scientists, doctors, and police & fire fighters. I would say that if a damage cap were enacted, our true heroes would deserve the maximum amount in case tragedy struck them. But if my accomplishments are only 1% of someone like Neil Armstrong or Christian Barnard, I wouldn’t think I deserve only 1% of the damage caps if we were both injured similarly.

The second danger is that of comparative measurements of injuries. In theory, juries aren’t supposed to know that damage caps exist. They’re supposed to award whatever sum they feel is appropriate, and the judge will then apply whatever cap is in place. In reality, any noneconomic damage cap will receive a great deal of attention in the press. It’s therefore more than likely at least one juror will bring up the cap during deliberations. The danger then becomes that the jury looks at a $250,000 cap as the “worst case” award, for someone who lost a spouse, or became paralyzed, or some other enormous tragedy. The jury then makes their award based not upon what they believe the value of the plaintiff’s injury is, but in comparison to the cap.

When Paris Hilton was arrested for drunk driving, she was driving a very nice Mercedes that costs roughly $600,000 dollars. Imagine if she would have been the drunk driver in our imaginary case, and that her car was totaled. Would it be right for her to receive a check for $600,000 to replace her car, yet only have to pay $250,000 to a child who lost its mother and $250,000 to a man who lost his legs and his wife? Surely, the losses of my imaginary family are worth more than a mere automobile. Most people would agree with that. But what can appear to be a clear line is easily made murky. What if instead of the drunk driver being Paris Hilton in one car, it was a semi driver for Ferrari’s racing team, and $10 million dollars in cars were destroyed? Should Ferrari receive more money than the child and father? If not, why should Ferrari have to lose millions of dollars? Let’s take it even a step further. The insurance proceeds from the destruction of the World Trade Towers are over $1 billion dollars. Is it fair for the victims’ families to each receive a sum less than the owner of the towers? After all, a building can be replaced, but human life cannot. It may not be fair, but I certainly don’t think each 9/11 victim’s family deserves $1 billion in compensation. Doing so would result in a payout of over $3 trillion dollars to the victim’s families. That’s clearly too much, by anyone’s standards. And, it wouldn’t bring anyone back from the dead.

The point I’m making here is that however distasteful we may find it, there are inanimate objects that are monetarily “worth” more than an individual human life. What are those objects? Again, it’s easy to say that Paris Hilton’s car is worth less than a human life. But if we put damage caps at even $500,000, her Benz does indeed become worth more than a human life. So do we raise them to $1 million dollars? Well, Bugatti has a $1 million dollar supercar that puts Paris’ Benz to shame. Is that Bugatti worth more than a human life? Or do we say that no car is worth more than a human life. If that’s the case, then the damage cap would need to be set at over $10 million dollars, as some rare cars have sold for that much at auction. So let’s turn to artwork. I recently bought a very cool painting for $30 that was in the K-Mart corporate art collection. No one would disagree that even though my painting is a one-of-a-kind, it’s not worth more than any human life. At the other end of the spectrum is Jackson Pollock’s Number 5, a painting that just sold earlier this month for $140 million dollars. It too is just a painting. But even I think that neither the father nor the child in my fictional case should get $140 million dollars. However, that’s not to say I don’t think the life of the dead mother, or the paralysis of the father or child are worth less than the painting. By setting damage caps, we invite comparisons of the value of human life with cars, paintings, and even CEO salaries. Most of us would agree that the life of a human being is worth more than a car, a painting, or a year of a CEO’s salary. But few of us would award a plaintiff hundreds of millions of dollars.

Does that mean that we don’t truly believe human life is more valuable than a car or a painting? No. It means that we value human life in a way that money cannot measure. And damage caps therefore attempt to place a dollar value on that which cannot be fairly valued by dollars.

There’s even another problem with damage caps. Let’s once more assume that I’m in a horrible accident and lose one of my legs. While I’m in the hospital, a dirty instrument causes my other leg to become infected to the point it needs to be amputated. I could sue the negligent driver, and the negligent hospital for two separate causes of action. In each case, I could receive whatever the maximum damage cap is. If it were $250,000, I could receive $500,000. But if the negligent driver took both of my legs, I’d only be able to receive $250,000. Remember, a central argument for damage caps is that similar injuries should be compensated similarly. So by the logic of tort reform, allowing me to recover $250,000 from the driver and then another $250,000 from the negligent hospital means I would be compensated dissimilarly from others who lost both of their legs. So what’s the solution? Do we enact a lifetime damage cap of $250,000, meaning the negligent hospital would be let off the hook? That’s not justice.

No matter what the damage cap is, I can come up with at least one possible scenario in which justice isn’t served. That’s the problem with “one size fits all” solutions; there’s always someone the solution doesn’t fit. Our jury system isn’t perfect. Jurors sometimes make the wrong finding, or award too much or too little money. That doesn’t mean that the solution is to virtually scrap the jury system and put in place a system that values the wealth of corporate defendants and their insurers more than the lives of innocent plaintiffs. If we truly believe that human life is priceless and sacred, then we need to put our money where our mouths are and quit supporting damage caps, no matter how high they may be.