By Deepa Devanathan
Many states have instituted damage caps on non-economic damages in medical malpractice cases. The practical effect of a damage cap is that jurors will set damages at a certain level and then the judge will decrease the damages if they are above the damage cap. However, three states, Massachusetts, West Virginia, and Wisconsin, tell jurors that there is a damage cap. For example, Massachusetts law states that in any medical malpractice case, “the court shall instruct the jury that in the event they find the defendant liable, they shall not award the plaintiff more than five hundred thousand dollars for pain and suffering.” But, in Primus v. Galgano, the court clarified that a defendant must request an instruction to the jury about a non-economic damage cap under Massachusetts law and waives his claim if he does not do so. Since currently only three states allow juries to know about damage caps, it is important to consider the effects of disclosure in order to better understand why most states prohibit the practice.
Sociologists have studied juror behavior and have found that the disclosure of damage caps can affect how jurors determine damages. Law Professor Michael J. Saks’s study to showed that when jurors were informed of damage caps, they would adjust the size of the award to meet the damage caps. In cases with injuries of low and medium severity, jurors would increase the size of damages to meet the cap, while in cases with injuries of high severity, jurors would reduce the size of damages to meet the cap. He attributed this to anchoring bias, which describes people’s tendencies to rely heavily on a piece of information—in this case the damage cap—to make subsequent decisions. Psychologists also found that the way in which a damage cap was disclosed to jurors affected jurors’ actions: Damage awards were lower when caps were stated as a limit compared to when they were stated as a recommendation.
When jurors are told about damage caps on non-economic damages they can compensate for the limit by increasing damages in other categories. For example, in Sasaki v. Class, the Fourth Circuit looked at a trial where the plaintiff’s attorney disclosed the damage cap during closing argument, but the jury appeared to increase its award to circumvent the cap by giving more generous damages on the claims that did not have a cap. In fact, the Fourth Circuit concluded that there was “strong reason to believe that the jury,” once it learned of the damage cap, attempted to compensate the plaintiff fully by awarding more damages for the counts that were uncapped. NYU Law Professor Catherine Sharkey terms this phenomenon the “crossover effect.” She explains that “where noneconomic damages are limited by caps, plaintiff’s attorneys will more vigorously pursue, and juries will award, larger economic damages, which are often unbounded.” Professor Sharkey’s hypothesis explicitly assumes that the line between economic and non-economic damages is not as rigid as some might think. Indeed, sociologists Alexandra Lahav and Neil Vidmar found evidence that jurors consider damages holistically. Lahav concludes that “valuing injuries in tort cases is a culture and contextualized exercise.”
With only three states telling jurors about damage caps the question becomes whether possible juror biases that accompany disclosure, such as anchoring bias, will keep that number at three or whether an interest in honesty with jurors will outweigh those biases. The disclosure of caps to jurors can change how they award non-economic damages but jurors often compensate in in the category of economic damages. This “crossover effect” is not dependent on jurors being told about damage caps. Therefore, there is reason to believe that disclosed or undisclosed damage caps can be avoided, making the efficacy of the caps questionable and the nondisclosure of the caps unnecessary.