Non economic damages in UDAP Litigation

Last week, while presenting several presentations on the use of expert witnesses at the National Consumer Law Center's 20th Consumer Rights Litigation Conference in Chicago, several audience members asked about recovering damages for the different types of non-economic injuries that a consumer experiences when victimized by a merchant's unfair and deceptive acts and practices.

Under one or more claims in a civil case, an injured consumer may have the right to be compensated for "non economic" damages. These are often thought of by lawyers and consumers alike as emotional or aggravation damages but can actually be based on a variety of physical or emotional symptoms and/or circumstances.

If you represent the consumer, your client may have the right to be compensated for emotional damages but you will have to tell the jury about it and the consumer must provide sufficient convincing evidence of the injury and/or damage - or they generally can not be compensated for it.

A few years back we heard from Virginia attorney Tom Domonoske on his thoughts on what kinds of injuries might be the subject of a non economic damages claim. Since then, the list has been broadened and made more complete, but there's no question Tom's input started it all. Here are just some of the examples of different types of circumstances that a consumer may experience and which may be compensable.
  • Aggravated existing illness
  • Anxiety attacks
  • Appetite loss
  • Bedridden circumstances
  • Chest pain
  • Concentration loss
  • Crying
  • Dizziness
  • Fear
  • Headaches
  • Humiliation or embarrassment
  • Hypertension
  • Hysteria
  • Illness
  • Irritability
  • Job performance affected
  • Job loss
  • Medical expenses
  • Muscle spasms
  • Nausea
  • Nightmares
  • Privacy loss
  • Relationships affected
  • Reputation affected
  • Loss of sexual desire
  • Shortness of breath
  • Sleep loss
  • Stomach pain
  • Weight gain
  • Weight loss
A consumer normally can not be compensated for these traumatic experiences unless there is some evidence of the injury, such as them talking about it and explaining it to the jury, or other persons tellilng what changes they have seen in conduct and demeanor, etc. In some state, actual medical evidence may be needed to prove causation for one or more symptoms and its relationship to a defendant's conduct.

Basically, the consumer should be able to finish this sentence: "because of what they did to me, I experienced ..." and then talk about the applicable symptoms listed above.

These experiences must also be caused by what happened in the case too. In other words, the consumer must genuinely believe (and be able to explain) that their emotional or physical symptoms are the direct result of what happened to them in relation to their troubles over their consumer product or service and their dealings with the merchant involved.

Friends, family, co-workers, and other persons may have witnessed the consumer going through some of the symptoms described above. If so, they may be able to help explain the evidence that supports the non economic injury and help a jury to understand how serious and real all of it has been for the consumer.

The question becomes, how did the consumer's reactions manifest themselves in the consumer's daily life? If the consumer was not bothered by what happened in their case, then they do not have the right to receive any compensation for emotional non-economic damages. If it did, then the consumer does have the right to compensation.

But a jury has to know that it is real and, as a practical matter, that means they have to hear about it from the consumer and their witnesses.

The consumer's explanation must be real, genuine and from the heart. If these symptoms do not apply to the consumer, then they should not talk abotu them and the attorney should not ask the jury to give any money because of them. Even if the jury does allow the consume rsome "aggravation" money for non economic injuries, the law is some states may limit the recover (such as in Ohio where it is capped at $5,000).

Can non economic injuries enhance a consumer's recovery in a UDAP case? Maybe, but that will always depend on the consumer and their ability to testify adequately, the attorney and his/her ability to demonstrate why it is appropriate, the defendant and their culpable conduct, the judge and the instructions being given and, of course, how the jury sees it all come together.
Ron Burdge
Helping attorneys, helping clients