Dirk Derrick (00:00):
Welcome to The Legal Truth, the podcast created to provide you general legal information about South Carolina law, lawyers, and the legal process, and hopefully prevent you from being surprised by the unexpected. We will answer many of the questions I've been asked during the past 35 years about South Carolina personal injury claims and workers' compensation claims. We will also discuss existing laws and proposed changes in the law and how they affect you. [00:00:30] My name is Dirk Derrick. I'm the founder of the Derrick Law Firm, and I'm your host.
Voiceover (00:35):
Please see required ethics disclaimers in show notes.
Pearl Carey (00:43):
Hi, everyone. Welcome back to The Legal Truth podcast. I'm your host, Pearl Carey, and I'm joined by attorney Dirk J. Derrick. And today we're going to be discussing the truth about recovering non-economic damages in a personal injury claim. So first off, Dirk, what are non-economic damages?
Dirk Derrick (01:00):
[00:01:00] That is a legal term for particular types of damages someone has because of personal injury claim. You think of medical bills and lost wages as economic damages. Those are things that have a dollar attached to them. Medical bills, so much. Your lost wage as a dollar value.
(01:19):
Then everything else are what we call non-economic damages. People love to say pain and suffering. That pain and suffering is one element, but that's just one. You have pain and suffering, [00:01:30] loss of enjoyment of life, inconveniences. You're looking at things that don't have a dollar amount on them, but ways that people's lives have been changed. If they're living with constant pain, that's non-economic damage. If they can't do what they could do before with their family members, that's a non-economic damage, but it's a real damage. And very often they're more important than the economic damages. The economic damages, you're just trying to collect enough money to pay the doctors [00:02:00] and to get back to a even playing field. The lost wages is just to give you back what you've lost out of your pocket. But the non-economic damages are kind of lifestyle, life damages where you can no longer live the life that you were living before the incident.
Pearl Carey (02:17):
Right. So how are those calculated?
Dirk Derrick (02:19):
People have trouble calculating them. Under South Carolina law, the jury comes up with that number. And we do a lot of focus groups. And in these focus groups, they've [00:02:30] expressed how hard it is to come up with that amount and get people to agree on that amount because people see things different. They see losses and having to go through life with painful condition or inability to play with your children or inability to play golf or golf every day, all that stuff has a loss, but people have a hard time putting value in it.
(02:55):
When we present cases to a jury, we actually can't tell them, "Give [00:03:00] us blank dollars for non-economic damages." The law says it's up to the jury. We can give them examples of ways to calculate it. And often, we'll try to show them the degree of harm and how long that harm is going to last. And we may present what's called a per diem argument because people are used to working on a per day or per week salary or per hour salary. So we kind of convert it [00:03:30] to what people are used to dealing with. So if someone has these losses, what do you believe they're worth on a daily basis or a weekly basis? And then we multiply it out for how long they don't have to deal with it.
(03:46):
Because if they're young or if they're middle-aged and they have to live with something for the rest of their lives, it's hard for people to project that distance of time. It's easy to project what something's [00:04:00] worth for a day. If you had a condition where you can't sit longer than 10 minutes or your back aches and you have to get up or you have to get a recliner, that's a bad non-economic damage. And somebody will look at that, and if you have it for a day, well, you get over it. But if you have it for a lifetime, how do you put a value? So we usually try to break it down to a smaller time period so people can understand she's going to have it today, she's going to have it tomorrow, and she's going to [00:04:30] have to live with it.
(04:31):
And the foundation of all of that is medical providers and experts testifying, "Here's the injuries. Client is at maximum medical improvement. They're as good as they're going to get. We've done everything medically we can do to get them to this point. And where they are now is where they're going to be in the future." So for any kind of future non-economic damages, you got to have a doctor say, "That's what they're going to live with."
Pearl Carey (04:58):
Okay. And who could be someone that could testify [00:05:00] for someone's non-economic damages?
Dirk Derrick (05:03):
Well, the doctor gives you the basis. They give you the injury, they give you the prognosis, they give you the why. I love doctors to tell a jury why this person's actually having this non-economic damage, to kind of disprove, people think, "Ah, they could be faking. You don't know." You need some medical experts and some experts to explain, "Hey, here's what they have and here's why they have [00:05:30] this pain. Let me show you structurally why they can't do this or why they're having pain doing this." And if you explain that to a jury, they understand better, so they can give you the foundation for it.
(05:42):
The best witnesses, as far as the non-economic damage and what people are going through, once you have a doctor to explain why they're going through it, are people, we call them before and after witnesses. We love to get people who aren't necessarily related to them or close family members, [00:06:00] but supervisors, co-employees, people who are acquainted with them but aren't best friends, to say before, these people can do this, but now they can't.
(06:12):
We'll often look at our client's social media and talk to our clients about, "What did you do before? Tell us what you did outside of work. And who did you do it with?" And use those people as lay witnesses to say, "Here goes what they could do before. Here goes [00:06:30] what they could do after, and here's the change of what they can do. Or if they do it, here's a change of how they can do it because of their limitations."
Pearl Carey (06:39):
Okay, that makes sense. So are there any caps on non-economic damages in South Carolina?
Dirk Derrick (06:45):
Not in the typical personal injury case. There are in medical negligence cases, but in personal injury cases outside of medical negligence, there's no caps.
Pearl Carey (06:54):
How do you recover non-economic damages in wrongful death cases?
Dirk Derrick (06:58):
Wrongful death cases [00:07:00] in South Carolina, when someone dies, there's two statutory causes of action. You have wrongful death, you have survivalship. The survival action actually compensates the person who passed away for any kind of pain and suffering they had while they were alive. And that's paid to the estate. Imagine someone gets hit by a truck and they suffer. And they may suffer for [00:07:30] hours, minutes, or they may suffer for months. You have people who come paralyzed or have bad injuries who lay in the hospital for months before they pass away. So the survival action is where you get that pain and suffering, loss of enjoyment of life during that period of time.
(07:48):
When someone passes away, their non-economic damages stop, as well as their economic damages, they stop. And now the damages on the wrongful death, [00:08:00] you look at the damages to family members. So there's a statutory schedule you go by. But you look at the loss those people have suffered because they've lost their loved ones. And that's, you can have economic damages if the person who passed away is financially supporting those family members. And then you have the non-economic loss, which is grief, sorrow, and what everyone knows is the worst [00:08:30] kind of damages when you lose a loved one close to you.
Pearl Carey (08:34):
Yeah, that makes sense. So how would you prove that loss for family members?
Dirk Derrick (08:39):
Well, for the non-economic stuff, what you're looking at is what type of relationship they had. You can imagine if a child is living with his mother and the mother is killed and that child relies on the mother, that child every day is with the mother. That's one level. And on the other end, [00:09:00] someone dies at 85 years old, doesn't have a spouse, doesn't have children, and maybe have siblings who now step up to the beneficiary of the wrongful death, and they live on the other side of the country. So they still lost their brother. They still love their brother, but the loss may not be as great as a child or a spouse who's living in the same household. [00:09:30] So you prove up the relationship, you prove the loss by proving the relationship while they were alive, if that makes sense.
Pearl Carey (09:39):
Yeah, that does. Absolutely. And I can see how this information could be very important for somebody involved in a wrongful death or survival action. So just go ahead and synopsize for me.
Dirk Derrick (09:50):
Well, non-economic damages in a nutshell are what I consider the most serious damages in a case. It's when somebody's [00:10:00] personhood or somebody's who they are, what they love doing, who the love spending time with, it's a loss to some part of that, and really just a personal loss people sustain because of the negligence of someone else. So it's very often the most valuable loss and most important loss and the most damaging loss that people have.
(10:28):
So you have to work it up. [00:10:30] You have to basically explain to a jury what's been lost, what's now missing that shouldn't be missing if the person who caused this incident would not have caused it. So it covers a lot of stuff, whether it's a temporary pain and suffering where somebody gets hurt and they're fine in two weeks, but bad pain for two weeks. Whether it's a burning incident where somebody's burned themselves and has this extraordinary pain, but maybe be [00:11:00] finished with the pain in a short period of time. Or whether or not it's a lifetime change where somebody has pain for the rest of their life, on pain meds or a pain stimulator, it changes their lives forever. So it comes in all kinds of forms, but it's a serious damage and a damage that we work up very thoroughly because we know it's important.
Pearl Carey (11:23):
Yeah, absolutely. Well, thank you so much for that. I know our viewers are going to get a lot out of this episode regarding recovering non-economic damages. [00:11:30] Thank you again to all who listened to this episode of The Legal Truth. Thank you to my co-host, Dirk J. Derrick, and we hope to see you on the next one. For more information, you can give us a call or you can visit our website at derricklawfirm.com. Thank you.
Voiceover (11:50):
Thank you for joining us on The Legal Truth Podcast. If you have questions that you would like answered on a future episode, please send them to [email protected]. [00:12:00] If you would like to speak to us directly, call us at (843) 248-7486. If you find the podcast valuable, please leave us a five star review and share The Legal Truth with your neighbor, friend, or family member who is seeking reliable information about a South Carolina personal injury or workers' compensation claim.
(12:19):
Dirk J. Derrick of the Derrick Law Firm Injury Lawyers is responsible for the production of this podcast, located at 901 North Main Street, Conway, South Carolina. [00:12:30] Derrick Law Firm Injury Lawyers has included the information on this podcast as a service to the general public. Use of this podcast and any related materials does not in any manner constitute an attorney-client relationship between Derrick Law Firm Injury Lawyers and the user. While the information on this podcast is about legal issues, it is not intended as legal advice and should not be used as a substitute for competent legal advice from a licensed professional attorney in your particular state. Anyone seeking specific legal advice or assistance should retain an attorney.
(12:56):
Any prior results mentioned do not guarantee a similar outcome. The content reflects [00:13:00] the personal views and opinions of the participants in the podcast and are not intended as endorsements of any views or products. This podcast could contain inaccuracies. The information contained in this podcast does not constitute legal advice and is not guaranteed to be correct, complete, or up to date, as laws continue to change.
(13:14):
In this podcast, you will hear information about focus groups. Please note that not all of the firm's cases are presented to a focus group. Additionally, when speaking about juries or jurors in relation to a focus group, we are speaking of focus group participants and not actual trial juries or jurors.