TorteDeForm

Justinian Lane

Even the Bush administration sets the value of a human life higher than $250k

$250,000 is the figure many corporate executives suggest as a cap on noneconomic damages.   I'm morally opposed to any artificial cap on damages, because I don't think we should put a price tag on human life.  That said, if I had to put a value on human life, it would be much closer to $6.9 million dollars than to $250,000.

The “value of a statistical life” is $6.9 million in today’s dollars, the Environmental Protection Agency reckoned in May — a drop of nearly $1 million from just five years ago.

The Associated Press discovered the change after a review of cost-benefit analyses over more than a dozen years.

Though it may seem like a harmless bureaucratic recalculation, the devaluation has real consequences.

When drawing up regulations, government agencies put a value on human life and then weigh the costs versus the lifesaving benefits of a proposed rule. The less a life is worth to the government, the less the need for a regulation, such as tighter restrictions on pollution.

Consider, for example, a hypothetical regulation that costs $18 billion to enforce but will prevent 2,500 deaths. At $7.8 million per person (the old figure), the lifesaving benefits outweigh the costs. But at $6.9 million per person, the rule costs more than the lives it saves, so it may not be adopted.

....

The EPA figure is not based on people’s earning capacity, or their potential contributions to society, or how much they are loved and needed by their friends and family — some of the factors used in insurance claims and wrongful-death lawsuits.

Instead, economists calculate the value based on what people are willing to pay to avoid certain risks, and on how much extra employers pay their workers to take on additional risks. Most of the data is drawn from payroll statistics; some comes from opinion surveys. According to the EPA, people shouldn’t think of the number as a price tag on a life.

Source: Value Of Life In U.S. Not What It Was | theledger.com | The Ledger | Lakeland, FL

If we were going to set a damage cap, why not base it on these sorts of government figures as opposed to an insultingly low $250k or $500k cap?

Justinian Lane: Author Bio | Other Posts
Posted at 6:20 PM, Jul 10, 2008 in Civil Justice
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Comments

Work at McDonald's takes approximately the same skill level as work on an oil rig. The latter has a much higher risk of death. What higher pay will incentivize someone to work on an oil rig rather than at McDonalds? That is the market value of the risk of death. This allows the value of life to be set by uneducated, risk takers. The value is totally inflated. If one of them died, we would not lose $6 million. We may actually come out ahead. We do have to pay for their other risk taking behaviors, their old age expenses, the cost of their beating up each other, their wives, their kids, of their liver transplant for their alcoholism. Biased Democrat bureaucrat selected this inflated figure, devoid of any scientific validity.

If the productivity minus the cost of their lives were to be calculated, many lives would have a negative value. This is more realistic, but a taboo for the biased Democrat bureaucrat. When a knucklehead is killed by someone's carelessness, the government may save so much that it should pay the tortfeasor for the favor.

This figure is pretextual. Otherwise, the symmetrical mirror image would exist. Once a criminal has generated more than $7 million in damage, his life should be forfeit. The average criminal generates that kind of cost before reaching adulthood, including $trillions in lost real estate value of properties in central cities.

Posted by: Supremacy Claus | July 10, 2008 9:06 PM

Can you please cite the 250K figure that many corporate executives suggest? Not trying to bust your chops but I'd like to see where it is coming from.

And sadly by your reasoning, I'd have to agree with SC's 3rd para. Gotta have it both ways.

Posted by: Adam | July 10, 2008 10:57 PM

Several states have capped it at $250k... I can check for you tomorrow.

I disagree with all damage caps for the very reason cited. Here's the problem: You're not allowed to kill someone for stealing or destroying your property. If we cap damages at X, why can't I kill someone to save something valued at X+1?

Posted by: Justinian Lane | July 10, 2008 11:35 PM

The social value of life is neither infinite, as it is to the person, nor even close to $7 million as it is to the lawyer collaborator in the bureaucracy. The reason you cannot kill someone who has exceeded that cost? The evil, the parasitic, the predatory, the murderous, the destructive are good customers of the rent seeking land pirate, a cult criminal himself, in charge of the three branches of government. The criminal is a valuable job generating commodity, who cannot even be verbally criticized to avoid ruinous litigation for verbal abuse.

The destructive criminal has nearly total immunity from the cult criminal. So of 23 million crimes a year, we would be lucky if 1 in 100 held a consequence, most totally mild, such as enrollment in drug treatment. The criminal lover rent seeking lawyer has granted total protection to the criminal.

If you want to get to the criminal, you will have to stop his sponsor, the lawyer cult criminal. The American legal profession is the world's most powerful and wealthiest criminal syndicate. They have hold of the US government and make 99% of its decision. Only a Lincoln class executive will have the courage to stop them.

Once removed from government by force, laws can pass excluding the cult criminal from all benches, all legislative seats, and all policy positions in the executive as the convicted felon is excluded. Once the lawyer has exceeded $7 million in damage to the economy (typically in 7 years at work), the lawyer may hang to stop the draining loss.

Posted by: Supremacy Claus | July 11, 2008 12:07 AM

Justinian,

Your post seriously muddles the difference between economic and noneconomic damages.

The $250k cap that certain states have is for NONeconomic damages -- intangibles like pain, suffering, or loss of consortium.

Let's say, for example, the wife of a rich plaintiffs' lawyer brings suit successfully for wrongful death. She would be entitled to both economic and noneconomic damages.

The economic damages could be well in the hundreds of millions, based on the lost income of the trial lawyer she would have benefitted from. There is not, nor has there ever been, any caps on economic damages.

In terms of non-economic damages, things like loss of consortium, her damages would be capped at $250k.

Thus, two things here are noteworthy:

(1) Noneconomic damages are not a proxy for the value of human life, as you've implied. Rather, the figure represents the loss of certain intangibles that *we cannot put numbers on.*

(2) Even if we were to consider tort damages as the value of human life, under no circumstances does it mean a cap at $250k means every life is only worth that much. It's that much, *plus economic damages,* which are uncapped, meaning that in any case the possible damages are limitless.

Further, any comparison of "life value" through an analysis of our tort system is doomed. Tort damages measure *fault* on the part of *defendants*, not a person's worth. You could kill a family of five in a car crash on a stormy night and not have to pay a penny, because you might not have the requisite level of moral fault. But by no means does that mean that the collective lives of a family of five are "worthless."

Posted by: Lawyer | July 11, 2008 12:37 PM

Lawyer, I'll have to disagree with you on a couple of points.

When we cap noneconomic damages, we're setting the value of a human life, because some individuals will have no economic damages at all. Homeless people, people incarcerated, clergy in certain churches, and to some extent, stay at home parents.

One of the reasons offered for capping noneconomic damages is that large pain & suffering awards can and do bankrupt some defendants. But as you point out, economic damage awards are limitless. It makes no difference to a small business owner or a doctor if he's put out of business because he had to pay $10 million in economic vs. $10 million in noneconomic damages. So the why not put a cap on economic damages? Because it isn't fair to the victim? I submit that neither is it fair to the victim to place an artificial cap on their suffering for loss of limb or loved one.

I also disagree that tort damages measure fault - that's incorrect. Damages only come into play once fault has been established. And you're not entitled to more in damages than the value of the thing lost. Placing a cap on noneconomic damages is placing a cap on the inherent value of all human life, regardless of income-earning potential. I believe damage caps debase our value as individuals.
As you say, we "cannot put numbers" on certain things. I agree, which is why I would oppose a noneconomic damage cap of $1 trillion dollars. If and when it comes time to place a value on a life, I think that juries should do it on an individual basis.

Posted by: Justinian Lane | July 11, 2008 1:34 PM

So...capping the possible recovery for pain and suffering means we're "setting the value of a human life" because, on occasion, a jury might find that a plaintiff's economic damages at zero? This is a non-sequitur on multiple levels.

Once you've admitted, as you have, that we can't put numbers on noneconomic damages, it doesn't make sense to say that a cap on a specific number is "unfair." How can we say that a $250k cap on damages is unfair, when we both agree that there is no way of knowing when noneconomic damages should be above $250k? We can't put a number on them, remember?

Thus, when you write "we 'cannot put numbers' on certain things...[W]hich is why I would oppose a noneconomic damage cap of $1 trillion dollars" it's a non-sequitur. If society is incapable of determining whether a plaintiff is entitled to more than $1 trillion dollars, what qualm can you have with a $1 trillion dollar cap?

"I also disagree that tort damages measure fault - that's incorrect. Damages only come into play once fault has been established."

A debate on whether damages "measure" fault or is a result of fault is pointless. That clearly was not the point of my family-of-five example [insert frustration here]. My point was that our tort system is not designed to determine what a person's life is "worth." It's about what a particular plaintiff is *owed.* Inherent moral worth as a human being is for the clergy. Our tort system is about redistributing hard currency from one party to another. Sometimes people die, and nobody owes a dime. That does not mean the person is worthless, just that we, as a society, have decided that their death did not involve moral culpability justifying monetary redistribution.

"If and when it comes time to place a value on a life, I think that juries should do it on an individual basis."

Why? Why are 6 people, in your eyes, allowed to determine the "value of a life" but we, as a democratic society, should be prohibited from saying that no person's pain and suffering will entitle them to more than $250k? How can six people's determination of total damages be more wise and just than a *societal* determination of *noneconomic* value?

Posted by: Lawyer | July 11, 2008 6:59 PM

"So...capping the possible recovery for pain and suffering means we're "setting the value of a human life" because, on occasion, a jury might find that a plaintiff's economic damages at zero? This is a non-sequitur on multiple levels."

Not quite. An award of economic damages has nothing to do with the value of a person's life, or the extent of their suffering, etc. If someone was going to earn $10 million throughout their life, and an accident renders them unable to do so, you've in essence stolen that $10 million and economic damages make you "pay it back."

Let me ask you a question: Assume we cap damages at $250k, and I buy a $275k Ferrari. If I see a guy trying to steal my Ferrari, why shouldn't I then be allowed to shoot him to protect property that's valued more than any pain & suffering I could cause him?

Posted by: Justinian Lane | July 11, 2008 8:43 PM

Lawyer, I'm right with you that the point of the tort system is apportioning moral culpability, but that doesn't provide a rationale for a $250k cap. It suggests just the opposite, that the tort system should be free to decide that a defendant is morally culpable for causing pain and suffering in excess of $250k. If we are apportioning moral blame, then let's do it wholeheartedly based on what happened.

As to your last question, I hate to pull the "America" card, but that is what this country is about. We prefer local, individual decisions to decisions made by fiat at the legislature. This is why we like our taxes low, our politician's from outside the Beltway, and our produce from farmer's markets.

In all seriousness, a jury's determination is more "wise and just" because a jury is capable of saying "this defendant caused $125k (or $250k or $1 billion or $0) in pain and suffering," rather then a legislature, which says "it isn't possible for any defendant, regardless of what they did, to have caused more then $250k in pain and suffering."

Posted by: Nate | July 11, 2008 8:47 PM

Nate: Explain to me why the judge and the lawyer have dealt themselves total immunity from accountability for their carelessness and the damage it causes to adverse third parties, even with $250K caps.

Posted by: Supremacy Claus | July 11, 2008 11:59 PM

Justinian? What if that man trying to steal your Ferrari shoots you instead, gets caught and goes to jail? What if he doesn't have a penny to his name? How does your family get thier min. 250K?

Posted by: Adam | July 12, 2008 12:18 AM

The wrongful death victim would sue the judge, the defense attorney, and the parole board for their failure to permit the prior execution of the murderer. Their insurance companies would pay for the real vale of the life taken by the good customer of the lawyer.

Posted by: Supremacy Claus | July 12, 2008 1:42 AM

All torts are pretextual. The lawyer wants to sue others. But no one may sue the cult criminal. Those who participate in this unjust, extortion scheme are criminals. Morally and intellectually, self-help has total justification against this massive criminal syndicate operation.

Posted by: Supremacy Claus | July 12, 2008 10:33 PM

"An award of economic damages has nothing to do with the value of a person's life...If...you've in essence stolen...$10 million [then] economic damages make you 'pay it back.'"

I agree. But I fail to see the distinction you've made between economic and non-economic damages. Non-economic damages work under an identical "pay it back" rubric. It's not the intangible, wholistic value of someone's entire life -- it's compensation for the amount of pain that a tortfeasor has wrongfully caused. Once again, think about the family of five example -- where nobody owes anything for a horrific crash -- that continues to go unaddressed.

I'm not sure what the issue is with the Ferrari hypothetical. The cap on noneconomic damages does not entitle people to shoot one another. You're "allowed" to use reasonable force in defense of property, (e.g., a taser) and you don't owe anything, regardless of the amount of pain caused. This doesn't mean that the tased person's life is worthless, but that you aren't morally culpable for the pain caused. Thus, it would be wrong to say that since there is no compensation to the person for his or her pain that his life is worthless. Tort damages don't measure the value of lives.

Nate, I agree that Americans have tended to prefer a great deal of localization of political decision-making. Except when they don't, as is the case with caps on non-economic damages and countless other issues related to trials.

Note also that the cap on noneconomic damages does not exist in a purely compensatory vacuum. It has a strong political component as well -- it's about reigning in run-away juries, ensuring fairness to defendants, and lowering insurance costs. You're not allowed, in any state, to argue at closing 'imagine how much it would take to pay you to be in the defendant's position for one day. Now muliply that by 25 years.' Nor does any state allow a plaintiff's sexual history to be admitted in a case for sexual assault. Nor does any court admit Hearsay; or conversations with counsel; or negotiations during settlement; or subsequent remedial measures by a defendant. The very existence of these rules exemplify the fact that we Americans prefer that trials ensure a certain amount of fairness even if it means that our trial system is no longer purely addressing compensatory issues.

Posted by: Lawyer | July 14, 2008 12:02 PM

Lawyer, when you say "it's about reigning in run-away juries, ensuring fairness to defendants, and lowering insurance costs" and then discuss fairness, I understand that to mean that an award for anything more then $250k for non-economic damages is presumptively unfair. Is that a fair statement of your feelings? Because if not, then I feel the last paragraph of my previous stands; a jury is better able to determine the actual extent of a defendant's moral culpability in a given situation, rather then a legislature looking at the whole field of tort.

And Americans like it, too.

If it is a fair statement, I'm curious as to why it is presumptively unfair. I can understand the insurance costs argument, although I don't agree with it. Why else?

Posted by: Nate | July 14, 2008 3:18 PM

"But I fail to see the distinction you've made between economic and non-economic damages. Non-economic damages work under an identical "pay it back" rubric. It's not the intangible, wholistic value of someone's entire life -- it's compensation for the amount of pain that a tortfeasor has wrongfully caused."

But in advocating caps, you're then stating either (a) No amount of pain & suffering is ever worth more than X, or (b) Even if you've suffered more than X dollars in pain & suffering, you don't deserve to recover it. I disagree with either proposition. Either proposition serves only to benefit defendants and protect them from financial ruin. If protecting defendants is a worthy goal, then why not cap economic damages, too?

"I'm not sure what the issue is with the Ferrari hypothetical... Tort damages don't measure the value of lives." You may say that tort damages don't measure the value of lives, but manufacturers can and do use tort damages to determine whether to repair safety defects in products. I think we fundamentally disagree about what damage caps do, because I believe they do set an intrinsic value on human life.

As a side issue, would you agree that damage caps should not apply if the conduct in question was criminal? If not, can you explain how it's fair to allow juries to issue literal death penalties but not financial death penalties?

Posted by: Justinian Lane | July 14, 2008 4:13 PM

Nate,

I can't speak on behalf of state legislators, but I don't think the non-economic damage cap necessarily means that anything above that is "unfair." Rather, it recognizes the fact that without the cap, the chances of severe unfairness to a defendant are exponentially greater, liability insurance costs more, which, coupled with the fact one can't really put a dollar figure on pain and suffering anyway, means that the legislature believes it preferable to have a damage cap rather than not have one.

Think of it as like statutes of limitations. It's not that a suit within 364 days is presumptively "fair" and that a suit after 366 days is presumptively "unfair" but that, as a whole, statutes of limitations are preferable than none at all, albeit with one/three/five years being an arbitrary line based on policy considerations.

"You may say that tort damages don't measure the value of lives, but manufacturers can and do use tort damages to determine whether to repair safety defects in products."

Justinian, what you've written is true. And manufacturers also use tort damages as a basis for hiring general counsel, measuring public relations budgets, and research and development. In short, manufacturers do many things based on tort damages; it simply does not follow that if a manufacturer does [X] based on tort damages, it automatically means that tort damages are designed to measure the value of peoples' lives. Particularly when in most suits involving damages for pain and suffering nobody's been killed.

As to your hypothetical, depending on the state, I don't think the damage caps apply for willful/wanton conduct. Not to mention that punitive damages would apply anyway.

But there is a distinction, to be sure, between issuing "physical death" and "financial death" on a defendant. Criminal liabilty is about punishment. Civil liability, aside from punitives, is about "making whole."

For example, in one of your comments you wrote about the homeless person whose killing might not result in wrongful death damages for any heir, since there is no loss of hypothetical consortium. In such a case, the jury cannot issue damages for pain and suffering, but can issue the death penalty (if in one of the twelve states that would allow it).

Posted by: Lawyer | July 14, 2008 5:13 PM

Lawyer, I would submit that that rationale still relies on a presumption that high awards carry are more likely unfair to the defendant. For them to be unfair, they must not be proportional to defendant's moral culpability, and the jury is the best situated party to decide that. But regardless, thank you for your polite reply.

As to the debate that you and Justinian are having, I don't really see that great a distinction. If the tort system is, as you an I agree, designed to assign moral culpability, and if the system allows damages to be assigned based on loss of constortium and loss of enjoyment of life (among others) then the damages being determined are the difference between and life lived with a person or with full physical health, and a life lived without. Isn't that determining the value of human life?

Posted by: Nate | July 14, 2008 6:00 PM

Personally, I think non-economic damage claims should be done away with entirely. Civil litigation is about money, not justice. That which cannot be objectively quantified is not a proper subject for the civil "justice" system to attempt to handle.

No amount of money can replace the death of a loved one so the "emotional damages" increment of a claim is merely an attempt to manipulate a jury into creating a jackpot for the survivors. Twenty five cents is as adequate (and inadequate) an award as $25 Million so why pretend that there is an element of justice to such proceedings

Posted by: Paul W Dennis | July 15, 2008 6:36 AM

Paul: The entire subject of torts is a bunco operation. Negligent torts have future forecasting as core doctrine, intentional torts, mind reading. Neither exists, neither is lawful under the Establishment Clause.

Posted by: Supremacy Claus | July 15, 2008 9:40 AM