In Damages in Class Action Lawsuits: Part 1 we covered “compensatory damages” and what, under the law, those damages would cover if awarded to a victim (or victims, in class action litigation) by a judge. These compensatory damages included but were not limited to: medical treatment and expenses, lost income and/or lost wages that accrue due to the inability to work after sustaining an illness or injury to the negligence of another, and pain and suffering (a topic we’ve recently covered at length).
Now, in Part 2, we’ll cover the three lesser known areas that damages can often cover: emotional distress, loss of enjoyment, and loss of consortium–the right legal counsel will know these areas exist and immediately address them! These are the three areas that insurance companies always hope the victim won’t uncover, because that means they must be compensated properly for them. A board certified lawyer will always know how to fight for everything rightfully owed to the victim–or victims–during litigation. It’s especially important to understand the areas we intend to cover, as within class action lawsuits, they can be what makes or breaks an entire class.
The legalities of loss
Loss, within the scope of the law, is defined differently than its standard definition. To better understand the legal side of loss, let’s first define the term as it’s often seen in law offices and courtrooms:
“1) the value placed on injury or damages due to an accident caused by another’s negligence, a breach of contractor other wrongdoing. The amount of monetary damages can be determined in a lawsuit. 2) when expenses aregreater than profits, the difference between the amount of money spend and the income.”
So as depicted in the legal definition of the term, loss is not inherently emotional, but rather, covers a wide array of damages that must be considered by a judge during the litigation process. Restricting “loss” to the emotional aspects of the victim’s or class of victims’ injuries would reduce the importance of the term, and therefore, an experienced lawyer must know how to properly navigate the case in order to ensure that every aspect of the clients’ rights are fairly met and compensated.
The two types of loss insurance companies often attempt to gloss over, hoping accident victims or class action lawsuit participants won’t notice are: loss of enjoyment and loss of consortium. Below, we’ll explain the importance of each:
Loss of enjoyment: in the case of a class action lawsuit, Roundup for example, a cancer diagnosis with necessary chemotherapy can severely and permanently reduce the victims’ quality of life. Chemotherapy is known to cause extreme side effects––drastically reducing quality of life and enjoyment of most activities the victims’ once enjoyed. Whether it be exercise, hobbies, or simply being able to spend time with loved ones without being confined to bed, “loss of enjoyment” is heavily weighed by the judge when His or Her Honor determines the damages to be awarded.
Loss of consortium: within the scope of Personal Injury, “loss of consortium” is not to be overlooked. This extremely important area of loss should not be taken lightly. For example, in Roundup cases where a diagnosis of terminal cancer was made, the loss of “consortium”–or companionship–between a husband and wife is taken into consideration. Being unable to remain intimate with a spouse due to side effects of treatment and unbearable cancer pain can negatively affect quality of life.
In certain states, the same weight of loss can be considered for relationships between a parent and their children. Not having Mom or Dad around due to long hospital stays and treatment can cause mental anguish on the children, resulting in lifelong mental trauma. This loss is again, taken into consideration heavily by the judge when he or she is making a determination of damages.
The seriousness of emotional distress
When it comes to emotional distress, we can recall The Law Resource‘s article covering mental anguish: Mental Anguish is Just as Painful as Physical Suffering and how mental pain should not be ignored in favor of solely relying on physical pain to be present. While most, if not all, class action lawsuits result from a class of men and women who have suffered grave physical injury or illness as a result of a defective product, chemical exposure, or service that did not perform in the manner it was advertised, almost all of these class members also suffer from what’s known as emotional distress.
Emotional distress is linked to catastrophic accidents and illness: again, Roundup makes a prime example of this: after years of working on farms and in other areas of agricultural life, men and women across the United States have been diagnosed with cancer as a result of Roundup exposure. This not only physically destroyed thousands of lives, but caused irreprable emotional distress. A terminal cancer diagnosis can cause extreme mental anguish for both victims of the disease and their families after their passing, as Roundup-related cancer diagnoses have all proven to be fatal forms of the disease.
Up next: Part 3, punitive damages in Personal Injury
In Part 3 of our Damages series, we’ll continue to look at types of damages awarded in both class action and individual litigation. We’ll explore how, when a defendant’s actions can be considered that of extreme negligence or recklessness (in the case of class action–Roundup’s manufacturer Monsanto deliberately hid their knowledge of their harmful product for profit) further damages may be awarded to the class. We’ll also navigate how these damages are designed so that the defendant (either a company or individual person) is penalized to the full extent of the law.