Many times a client will ask for a lawyer’s opinion regarding what a personal injury claim is worth. Answering this seemingly simple question can be a complex legal analysis of available parties, potential injury claims, legal liability and the unique way in which each plaintiff suffers harm. At its essence, the value of a personal injury claim is what a jury in the county where the case is filed is likely to award at the conclusion of a trial, factoring in the likelihood that the plaintiff will prevail. The first step in this analysis is understanding what damages a jury may permissibly assess.

With very limited exceptions primarily dealing with Wrongful Death claims, Massachusetts’ law allows juries to award only Compensatory Damages” to personal injury victims. Compensatory damages provide a plaintiff with the monetary amount necessary to replace what was lost, and nothing more. The purpose of Compensatory Damages is to place the plaintiff in the same position as if no wrong had been done to him/her by the defendant. Other states allow juries to award “Punitive Damages” in personal injury claims. The purpose of punitive damages is to punish a defendant for his or her conduct as a deterrent to the future commission of such act. In Massachusetts, Punitive Damages in personal injury cases are recoverable only for Wrongful Death resulting from gross negligence and/or willful, wanton or reckless acts. This means that in the vast majority of personal injury cases in Massachusetts, the focus for determining damages needs to be on what the plaintiff lost, not on the conduct of the defendant. It is the role of the attorney to determine how each individual plaintiff has been specifically harmed by the defendant’s conduct and what monetary amount would properly compensate those unique circumstances.

The types of Compensatory Damages which jurors may award in Massachusetts are:

1) Medical Expense Compensation (Past, Present & Future). A plaintiff is entitled to be compensated for past and present medical expenses which a jury finds to be fair, reasonable and necessary. Jurors are also allowed to award fair and reasonable sums for medical expenses likely to be incurred by the plaintiff in the future. Awards of future medical compensation often include expected nursing and institutional care.

2) Loss of Earning Capacity. Under Massachusetts’ doctrine of “Loss or Diminution of Earning Capacity,” an injured plaintiff is entitled to be compensated for the loss or lessening of his/her ability to work, even if not gainfully employed at the time of the negligent act. An award of Diminution of Earning Capacity is based upon the age, skill, training, experience and industry of the plaintiff, the wages commonly received by one pursuing the same or similar occupations and the extent to which the plaintiff’s injuries limit him/her from obtaining employment.

3) Pain and Suffering (Physical and Mental). Massachusetts permits juries to award damages for both physical and mental pain and suffering. For physical pain and suffering, jurors are asked to award damages for the areas of the plaintiff’s body which they find were physically injured as a result of the defendant’s negligence. They are instructed to take into account past pain and suffering endured by the plaintiff since the date of the injuries, the present pain and suffering caused by the injuries and any future pain and suffering which were proved with reasonable medical probability. An award for mental pain and suffering includes any past, present and probable future nervous shock, anxiety, embarrassment or mental anguish resulting from the injury.

4) Disfigurement. In cases where the physical injury has resulted in scaring, dismemberment or change in the plaintiff’s physical appearance, the jury may rely upon its common sense and conscience to translate into dollars the amount which would fairly compensate a plaintiff for the alteration in appearance.

5) Loss of Consortium (Spouses & Children). A Spouse of an injured person has a right to Compensatory Damages for impairment of the marital relationship in a personal injury case. Such spousal rights, known as “Loss of Consortium” claims under Massachusetts law, are based on the degree to which the quality and nature of the marital relationship has suffered due to the harm sustained by the injured plaintiff. An injured plaintiff’s minor children may also recover for damage to the parent-child relationship suffered as a result of the defendant’s negligence. Such claims for “Loss of Parental Society” allow minors to recover for the loss of enjoyment, comfort, solace and moral support in the parent-child relationship caused by the plaintiff’s injuries.

Compensatory Damages for pain and suffering, disfigurement, and loss of consortium/society are not tied to any actual monetary loss. This can make them very difficult to calculate. There is no formula under Massachusetts law by which jurors determine such damages. Jurors are only asked to use their wisdom, judgment and sense of basic justice to translate into dollars the amount which will fairly and reasonably compensate the plaintiff for his/her injuries. Further compounding the difficulty is the prohibition in Massachusetts preventing attorneys from asking or suggesting to a jury specific dollar amounts for a damage award. What this means as a practical matter is that other than providing figures for medical expenses and lost earnings, a lawyer in Massachusetts cannot assist a jury in calculating damages. As you might expect, this has resulted in a wide range of damage awards for seemingly similar injuries. It is the responsibility of the plaintiff’s lawyer to convey to the jury how each specific plaintiff has uniquely endured the consequences and hardships of an injury. In order to understand the extent to which a jury would assess damages in a personal injury trial, the lawyer must understand the human and individual nature of a plaintiff’s damages.

Valuation of a personal injury case does not end with an analysis of damages alone. The likelihood of proving the defendant’s negligence and that such negligence caused the plaintiff’s damages must also be considered. At trial, a jury will typically be instructed to determine whether the plaintiff him/herself was negligent and partially responsible for causing his/her own damages. The jury thereby compares the negligence of the defendant to that of the plaintiff. If the jury finds that the plaintiff is more than 50% responsible for causing the damages, then the plaintiff is not entitled to receive any monetary award. If the plaintiff’s negligence is less than or equal to 50%, the amount of the plaintiff’s damages are reduced by that percent. For example, if the jury finds a plaintiff to be 25% negligent, the plaintiff will be entitled to only 75% of his/her damages. This is known as the Massachusetts “Comparative Fault” doctrine and is codified at M.G.L. c. 231 §85.

Finally, every damage calculation, whether compensatory or punitive, requires an assessment of causation. In order for a plaintiff to recover for a harm, it must be proven that the harm was caused by the negligence of the defendant. The burden is on the plaintiff to establish that the damages arose due to causes for which the defendant was responsible and not from any other cause. For example, in cases where the plaintiff had injuries pre-dating the defendant’s negligence and/or endured subsequent new injuries after the negligence, the jury must determine if the defendant’s conduct was responsible for causing the damages, and not these other events.

Because each personal injury case is linked to the individuality of each plaintiff, the above analysis will be different for each client. The wrongful death of a family member, for example, will affect each plaintiff in a singular way as no two claimants will experience a loss of a loved one’s comfort, guidance, companionship and support identically. Proper valuation of a personal injury case not only requires identifying the merits of all potential claims, including for spouses and minors, it also requires the attorney to learn who the client is and was in their professional, personal and family lives. The process of case valuation is dependent upon an intimate and thorough understanding of the client and how his/her unique life has been changed by the injury. Please contact us if we can assist in any way.

Call us at 617-542-1000 or email