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Salgado v. County of Los Angeles12/7/1998
that when future non-economic damages are sought, the jury should be instructed expressly that they are to assume that an award of future damages is a present value sum, i.e., they are to determine the amount in current dollars paid at the time of judgment that will compensate a plaintiff for future pain and suffering. In the absence of such instruction, unless the record clearly establishes otherwise, awards of future damages will be considered to be stated in terms of their present or current value.
As Oliveri observes, in determining "the sum that the plaintiff should have now as compensation for the pain and suffering he will endure," juries " o doubt . . . intuitively make some sort of rough present value discount in determining awards for non-pecuniary losses, recognizing that their awards may be invested." (Oliveri v. Delta S.S. Lines, Inc., supra, 849 F.2d at p. 751.) Indeed, because the sum to be awarded is compensation for the pain and suffering to be incurred in future years and because the money received now can be invested, it makes sense to give some recognition to the time value of money in determining the sum the plaintiff should have available now and during the future years throughout which his disability will continue. Oliveri explains that the jury, in determining the amount that the plaintiff should be awarded now as compensation for pain and suffering, can properly be told to consider the time value of the award, but the trial court "should make it clear that the precise method appropriate for discounting awards for pecuniary losses need not be followed." (Ibid.) Indeed, it seems anomalous to assume that juries can and generally do determine the amount of money that must be paid now to compensate for future pain and suffering, but then to withhold instructional language that would describe the nature of this task. Such instructional guidance will reduce the risk of a jury delivering a future non-economic damages award that is inflated or excessive based on the misleading arguments of counsel. For these reasons, we recommend the adoption of a similar approach by our trial courts.
Instructing that the jury must calculate a present value will, as a practical matter, also simplify application of the statutory cap of $250,000 under Civil Code section 3333.2. (See Hrimnack v. Watkins, supra, 38 Cal.App.4th at pp. 981-982 [assuming that future pain and suffering award, which was reduced to the statutory maximum of $250,000, was a present value sum].) If the final award of non-economic damages exceeds $50,000, in current dollars, it remains subject to periodic payment upon request of either party, under Code of Civil Procedure section 677.7.
County contends that the trial court was "legally and constitutionally" required to fashion the periodic payment schedule based on the jury's determination of the total amount of future non-economic damages, not its present value, i.e., the amount of an immediate lump-sum award. It argues that any other approach violates the plaintiff's constitutional right to a jury trial. The point, as applied to non-economic damages, is without merit. Indeed, Gorman v. Leftwich (1990) 218 Cal.App.3d 141, 150, which it repeatedly cites in support of this proposition, holds to the contrary: " here the jury returns only a present value verdict, a trial court can consider the trial testimony and, if necessary, supplement that evidence with post-verdict testimony in order to determine the gross damages and in turn to fashion a schedule of periodic payments based thereon. We find nothing in such a procedure which denies either party its constitutional right to jury trial so long as the resulting judgment falls within the parameters of the verdict and the
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