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What is life worth?

“‘If it saves one life, it’s worth it,’ goes a common refrain. So said The Chicago Tribune about a gun buy-back program in July. So said a Mercer County, Penn., cop about his department’s use of all-terrain vehicles for remote patrolling. So said a Massachusetts advocate for primary enforcement of seatbelt laws, and an Atlantic City, N.J., health official in support of needle-exchange programs.

The notion that no price is too high to pay to save a single life is a widely accepted view. But, according to A. Barton Hinkle, a Ricmond, VA Times Dispatch columnist, it is not accepted in Washington, D.C. — and for good reason. Inside the Beltway they take a very hard-nosed approach to the value of human life. Recently the EPA marked down its estimate of that value, from just a hair over $8 million to $7.22 million. The federal Department of Transportation, meanwhile, raised its estimate of the value of a life, from $3 million to $5.8 million. The Consumer Product Safety Commission has held its estimate steady for a decade, at $5 million. Government agencies need to put a price on human life to help them evaluate the merits of the choices they make. Suppose the Mine Safety and Health Administration is considering a rule to require a canary in every coal mine. If the rule would cost $10 million to implement, but would save 10 lives a year, then from a cost/benefit perspective it’s entirely worth the price.”

The columnist provides some useful insight into a question that personal injury attorneys are called upon to assess and consider on a regular basis. To view the full article, click here.

The article also reminded me of the book written by Kenneth Feinberg, the administrator of the 9/11 victim compensation fund entitled what is life worth. You can preview that book by clicking here. You can read the New York Times book review by clicking here.

In determining the amount compensates victims of the 9/11 tragedy, Feinberg was called upon to calculate the incalculable. For 32 months, he tried to “fill the hole in a family’s life with money,” attempting to bring some fairness to settlements for the families of wealthy stockbrokers, middle-class firemen and policemen, and immigrant restaurant workers. What Feinberg struggled with most was the awesome task of deciding the value of human life, acknowledging his own clumsy insensitivity at the beginning, and gradually learning to deal with grieving families who wanted as much to be heard as to be compensated.

So what is a life worth? It’s an interesting and daunting question to say the least. And as the article and book points out, there is no simple formula or answer.

Plaintiffs who reject settlement offers do worse at trial

At times, it is suggested that taking the case to a jury is akin to rolling the dice in Las Vegas. That gamble of going to trial does not pay off for most plaintiffs, according to a study of more than 2000 civil lawsuits from 2002 to 2005.

The study, conducted by DecisionSet, and to be published in the Journal of Empirical Legal Studies in September, noted that on average, getting it wrong cost plaintiffs at about $43,000. For defendants, who were less often wrong about going to trial, the cost was much greater: $1.1 million. Defendants made the wrong decision by proceeding to trial far less often, in 24 percent of cases, according to the study; plaintiffs were wrong in 61 percent of cases. In just 15 percent of cases, both sides were right to go to trial — meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered.

As part of the study, which is the biggest of its kind to date, the authors surveyed trial outcomes over 40 years until 2004. They found that over time, poor decisions to go to trial have actually become more frequent.

If anything is to come out of the study, it is the idea that lawyers must fully advise their clients about the risks of going to trial, and must be honest with the client in assessing the case. A good lawyer has to be able to tell clients how a jury may see their case, and how they may see it differently than the client. Part of that is judgment, and part of that is diplomacy.

“The lesson for plaintiffs is, in the vast majority of cases, they are perceiving the defendant’s offer to be half a loaf when in fact it is an entire loaf or more,” said Randall L. Kiser, a co-author of the study and principal analyst at DecisionSet, a consulting firm that advises clients on litigation decisions.

For more on the study, you can read the New York Times article by clicking here, or the American Bar Association Journal article by clicking here.

FBI liable for murder by informants

A federal judge found that the FBI’s mishandling of longtime informants James “Whitey” Bulger and Stephen “The Rifleman” Flemmi caused the 1984 murder of Quincy fisherman John McIntyre and ordered the government to pay more than $3 million to McIntyre’s mother and brother. US District Judge Reginald C. Lindsay, who presided over an 18-day bench trial in June, ruled that former FBI agent John J. Connolly Jr. warned Bulger and Flemmi that McIntyre was cooperating against them, knowing the tip would likely lead to McIntyre’s murder.

McIntyre, 32, was lured to a South Boston home, chained to a chair, grilled for hours, choked, and shot to death, according to Flemmi. His remains weren’t discovered until January 2000.

In a 110-page decision, Lindsay found that the FBI failed to properly supervise Connolly and failed to investigate numerous allegations that Bulger and Flemmi were involved in drug trafficking, murder, and other crimes over decades.

The judge ordered the government to pay $3 million to McIntyre’s mother for the conscious suffering he endured before his brutal slaying, $100,000 for the loss of her son’s company, and $1,876 for funeral and burial costs.

The court decision offers a unique look into the Massachusetts Wrongful Death statute and compensation laws in general. As the court noted, the purpose of the statute is to compensate survivors for the loss of the decedent’s life. It also allows recovery for the loss to the person entitled to recover of the services, protection, care, assistance, society, companionship, comfort, guidance, counsel, and advice of the decedent (otherwise known as “loss of consortium” damages). The court grappled with the difficulty in quantifying these consortium type damages:

Such damages, however, are notoriously difficult to quantify. Havinga v. Crowley Towing and Transp. Co., 24 F.3d 1480, 1484 (1st Cir. 1994). There is, after all, no scientific formula or measuring device that can be applied to place an exact dollar value on noneconomic damages . . . . Muniz v. Rovira, 373 F.3d 1, 8 (1st Cir. 2004). Nevertheless, the amount awarded must be the product of a process of rational appraisal and based upon the evidence adduced at trial. Ruiz v. González Caraballo, 929 F.2d 31, 35 (1st Cir. 1991).

The court also addressed compensation for the decedent’s conscious suffering, another element of recovery under the death statute. Here the court had to consider and quantify rather gruesome evidence about how McIntyre suffered in the time just before he died. The analysis provided by the court highlights the difficulties juries face daily in awarding damages for human suffering:

The evidence of both McIntyre’s consciousness and his suffering is ample. For a period of about one to two minutes, Bulger, an accomplished murderer and a pretty powerful person, as Flemmi put it, tried to strangle McIntyre. In the abstract, one to two minutes is not a long time. But consider the annoyance of some motorists at an overlong traffic light, when all they have to do is wait for a period of seconds. McIntyre was not simply waiting; he was being murdered. He was handcuffed, his body encircled with chains. The rope around his neck – the first instrument applied to the task of accomplishing the murder – undoubtedly caused extreme pain and constricted his breathing. Then there was the pain of the handcuffs, which, by that point, had bound him for five or six hours. Applying common sense and logic to the facts of record, I find that after the attempted strangulation began, McIntyre likely was in extreme pain throughout his body. It is reasonable to infer, and I do infer, that when McIntyre did not die right away, Bulger increased the pressure on the rope, thereby increasing the agony experienced by McIntyre. McIntyre vomited and audibly gasped for air, making gagging and gurgling sounds. And McIntyre suffered more than physical pain. If, as Flemmi testified, McIntyre suffered mental anguish even before any attempt was made to kill him, the anguish he experienced as the attempt began and progressed must have intensified dramatically. He was terrified; he knew his tormentors intended, and would likely succeed in accomplishing, his murder. He had been an informant, and he would pay the price typically paid by revealed informants. He knew that there would be no time for goodbyes to his loved ones or for putting his affairs in order; for he would not leave that basement alive. It is difficult to imagine a more distressing set of circumstances – physically and mentally – than those encountered by McIntyre during the minutes preceding his death in the basement of 799 East Third Street on November 30, 1984. It was, as Emily McIntyre said, torture. See Emily McIntyre June 16, 2006 Tr. at 79. I infer that, for McIntyre, the one to two minutes of physical and mental pain were an eternity. It is not surprising, therefore, that when Bulger offered him the opportunity of a swifter death by a gunshot to the head, McIntyre pleaded for that gruesome, but quick relief from his suffering. It is his “yes, please” that is the most certain evidence of his conscious suffering.

On this evidence, the court found that a reasonable award was $3 million.

To view the entire decision, click here.