Putting a price on pain can be more objective, federal judge says.

How do judges determine whether jury-awarded pain and suffering damages are fair? Many rely on their experience and intuition, but a federal judge in Brooklyn, New York, has taken a page from the math books to answer this highly debated question in tort law.

Judge Jack Weinstein of the U.S. District Court for Eastern New York used courthouse records and a common statistical analysis to make up his mind about three pain and suffering awards in a recent repetitive strain injury case involving computer keyboards. (Geressy v. Digital Equipment Corp., No. 94-CV-1427 (E.D.N.Y. June 2, 1997).)

Weinstein determined that two plaintiffs' awards in the Geressy case were appropriate at $100,000 and $43,000. The jury awarded the third plaintiff, Patricia Geressy, $3.5 million, which Weinstein said should be reduced to $2 million.

How judges decide

"The way judges decide [the appropriateness of damages] is generally by how other cases have been decided in the past," said Shari Diamond, a senior research fellow at the American Bar Foundation who is also a lawyer familiar with quantitative analysis.

"This is the first time with respect to pain and suffering damages that a formula has been introduced for analyzing the implications of previously decided cases," she said. "Judge Weinstein analyzed [comparable cases] explicitly--in a quantitative way. As he said in the opinion, comparables have been used in land values for a long time. That is not new, but he is doing something quite new by going with a quantitative formula."

To examine damage awards in Geressy, Weinstein held a hearing et which lawyers for both parties presented settlements and verdicts from comparable cases in the same general geographical area. From those, the judge determined that 25 were comparable.

Next, he applied the statistical formula, which requires that the award be no more than two "standard deviations" above the average of comparable cases. In Geressy, this number amounted to $2 million. Weinstein, therefore, determined that the $3.5 million jury award to Geressy was $1.5 million over the top.

The judge's homework turned out to be a hollow exercise for the Geressy case, though, because he tossed out the name plaintiff's entire verdict based on a separate issue of newly discovered evidence.

Weinstein cautioned that the mathematics be used only as guidance. "Statistical analysis alone can never be controlling," the judge wrote. "The court must always exercise independent discretion in its review."

Diamond said she believes the most important part of the analytical process is identifying the comparables. "The formula is relatively easy, but you need a smart judge to say this case doesn't make it [on the list of comparables]," she said. "This is not a mindless exercise, even as Judge Weinstein has laid it out."

Diamond said the decision by Weinstein--who is known for innovative rulings and is influential in the federal bar--may have an effect on other judges.

"If they are interested in using a principled way to determine the appropriateness of an award, there's no reason this could not be used quite widely," Diamond said. "Whether it will be is a different story."

Richard Gurfein, past president of the New York State Trial Lawyers Association, said Weinstein's method is anything but novel in judges' circles.

"This is merely putting into words what every appellate court has done forever," he said. "What he is saying is you can't create a computer program to evaluate damages. What this opinion says to me is that appellate courts aren't going out of business."