Debus v. Grand Union Stores of Vermont
159 Vt. 537, 621 A.2d 1288, 1993 Vt. LEXIS 17 (1993)
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Rule of Law:
An attorney may suggest a specific daily monetary value ('per diem' argument) to a jury for calculating pain and suffering damages, as this practice is not inherently improper or prejudicial when made under the supervision of the trial court.
Facts:
- On August 23, 1985, the plaintiff was shopping at a store owned by Grand Union.
- A store clerk was engaged in restocking shelves from an overloaded and imbalanced pallet of boxes containing pet food cans.
- While the clerk was attempting to move the pallet, it toppled over.
- The boxes fell from the pallet and landed on the plaintiff.
- As a result of the incident, the plaintiff suffered injuries that resulted in a 20% permanent disability.
Procedural Posture:
- The plaintiff sued Grand Union in a state trial court for personal injuries based on a premises-liability claim.
- The case proceeded to a jury trial.
- The jury returned a verdict in favor of the plaintiff, awarding her damages of $346,276.23.
- The defendant, Grand Union, appealed the jury's verdict and the damage award to the state's highest court.
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Issue:
Is it permissible for a plaintiff's counsel to make a 'per diem' argument to the jury, suggesting a specific daily monetary value for pain and suffering to calculate a total damages award?
Opinions:
Majority - Johnson, J.
Yes. It is permissible for a plaintiff's counsel to make a 'per diem' argument to the jury because it is a tool of persuasion that is not inherently prejudicial, and sufficient safeguards exist within the adversarial system to prevent abuse. The court reasoned that juries are tasked with the difficult job of equating pain with a monetary figure and can benefit from guidance offered by counsel. If suggesting a lump sum is permissible, explaining the methodology used to arrive at that sum, such as a per diem calculation, cannot be impermissible. The court expressed confidence that rebuttal by opposing counsel, standard jury instructions that arguments are not evidence, and the trial court's power to grant remittitur for excessive verdicts are adequate safeguards against prejudice.
Dissenting - Allen, C.J.
No. Counsel should not be permitted to suggest specific monetary amounts to the jury, whether on a lump sum or time-unit basis. The dissent argues that the better approach is to allow counsel to explain the appropriateness of a time-unit calculation technique but prohibit them from suggesting specific dollar figures, which are not evidence and can improperly influence the jury. The dissent also contends that a general instruction that arguments are not evidence is insufficient to cure the potential prejudice, as specific numbers may sound like evidence rather than mere argument. A more specific cautionary instruction is needed to clarify for the jury that the formula is merely an illustration and not binding.
Analysis:
This decision aligns Vermont with a growing number of jurisdictions that permit per diem damage arguments, reflecting a trust in the adversarial system and jury's capacity to distinguish argument from evidence. It provides plaintiffs' attorneys a concrete and persuasive method for quantifying abstract non-economic damages like pain and suffering. Consequently, the ruling places a greater burden on defense counsel to vigorously rebut such calculations and highlights the trial judge's role in supervising closing arguments to prevent prejudice. This case effectively shifts the focus from whether such arguments are allowed to how they are presented and controlled within the trial setting.
