Another flaw in per diem arguments is that they suggest pain can be equated to dollars and that a formula will justly compensate a plaintiff. Note to the jury that unless plaintiff has established with credible evidence why a certain dollar amount should be applied to a particular time segment, perhaps the jury should not use such a suggestion because it lacks evidentiary basis. See Botta v. Brunner, 26 N.J. 82, 138 A.2d 713 (1958). Remind the jury of how difficult it is to quantify pain. Have them recall every doctor’s visit when the doctor asked, “Rate your pain on a scale of one to ten,” and how difficult it is to suggest a number. This will point out the arbitrariness in plaintiff’s formula. Also, you can point to the fact that pain often fluctuates and can dissipate over time. A major flaw with a constant mathematical formula is it fails to take into account any fluctuation and dissipation over time. This suggests to the jury the highly speculative nature in mathematical formulas for pain and the false illusion of security created by plaintiff’s mathematical equation. See Crum v. Ward, 146 W. Va. 421, 122 S.E.2d 18 (1961); Caley v. Manicke, 24 Ill. 2d 390, 182 N.E.2d 206 (1962).
In a recent case in Kansas, the Kansas Supreme Court held that per diem arguments are not prohibited during closing argument, but the better position is to allow such arguments with caution. Wilson v. Williams, 261 Kan. 703, 710, 933 P.2d 757, 761 (1997). The Court stated that trial courts should continue to expressly instruct juries that (1) there is no mathematical formula for determining nonpecuniary damages; and (2) counsel’s opening and closing argument are not to be used as evidence. Id. This case presents several ways in which defense counsel can “attack” a per diem argument that is allowed in trial. First, this case demonstrates the kind of jury instruction that should be requested or the kind of instruction the court should offer sua sponte. Second, this case also suggests several arguments defense counsel can employ in rebuttal.
The Practice Maryland Manual for the Maryland Lawyer suggested an argument in response to plaintiff’s counsel’s per diem arguments. For example, plaintiff’s counsel may have suggested that the plaintiff be compensated for $40 per day for the plaintiff’s life expectancy. In response, one lawyer suggested:
“I try to point out that this is an artificial structure and that the plaintiff’s attorney probably worked backward from the total. I argue that you can use the number to come up with virtually any results you want. I point out that plaintiff’s pain is relieved by pain medication, and that the pain medication costs less than $1 per day, and that the plaintiff has introduced only so much in the way of prescriptions, leading to a vastly different response for the total for pain and suffering.”
The Practice Manual for the Maryland Lawyer § 11.20 (3d ed. 2008). While this argument assumes the plaintiff’s pain is relievable by pain medication, it provides a good basis and example as to how to practically combat a lofty per diem argument.
When responding to a per diem argument, (1) ask for a jury instruction cautioning the jury that such formulas are only illustrative and not evidence; (2) take note of the timing of the argument and make a timely objection so as to allow for proper rebuttal; (3) point out the flaws in the argument, i.e. the invasion of the jury’s role and the speculative and arbitrary nature of the formula; (4) and remember the Kansas and Maryland examples.