1988 | Austin, TX

Price Adjustment

Calculating the cost of pain and suffering.

On July 9, 1982, a Pan Am jet carrying 154 passengers and crew clipped a tree just after takeoff from New Orleans International Airport and smashed into the runway. Everyone on board died. Four to six seconds passed between the moment the plane struck the tree and the instant the pilot’s desperate efforts to bring the nose up ended on the hard tarmac. In 1986, a jury decided that the children of two of the passengers should receive $20,000 for the mental anguish each of their parents felt during those last four to six seconds. In 1988, the airline appealed this award.

The appeal landed in my inbox. The judge I worked for wanted me to go over the figure the jury had arrived at. He needed a reason to dissent or concur in a draft opinion that was circulating.

In a professional sense, this was a routine assignment. To start with, I had the jury’s verdict. And the strong reluctance—going back to medieval English law—to revisit the hard questions the jury had decided. No judge was supposed to fiddle with the jury’s numbers unless, as one opinion I read put it, they fell outside “the universe of possible awards” that a “reasonable jury” could assign. So my task settled into a straightforward research job: all I had to do was find every case in the last twenty years or so in which a jury had priced last-minute mental fear and anguish, compare that amount with the one assigned here, and report to my judge whether this jury’s number fell within that range.

I set to work. Conveniently, a legal indexing system had a computer-searchable category for what I was looking for: “Death,” subcategory number seventy-seven, “Preimpact Pain and Suffering.”

A lawyer doesn’t read cases the way he or she reads a novel or a newspaper article. If reading a novel is a stroll along a winding path through a meadow, reading a case is the circling of a hawk hundreds of feet above that meadow, interrupted by a downward swoop to snatch at the barely perceptible scurry of a field mouse. Focused on one question­­—what is the range of damages that may be awarded for an air crash victim’s preimpact pain and suffering?—I skimmed over discussions of weather conditions, control-tower negligence, pilot drug use, mechanical failures, future earnings. Not my concern whether the judge should have allowed the jury to read a wind-shear expert’s report, whether a nephew could win damages for the loss of an aunt under Illinois law, how much money a medical student would have made over the course of a lopped-off career—or how much to subtract for the cost of finishing medical school and buying stethoscopes and eye charts. But despite my narrow lens, despite the deliberate impersonality of the opinion writers’ language, details from one opinion, and then another, broke through: The woman’s body found with every inch of its skin charred by the fire that swept the cabin but with internal organs and bones intact; this showed she did not die when the plane hit the runway, but survived for several seconds afterward. The two minutes a pilot spent desperately trying to right a bucking plane after a wing clipped a baggage truck, while the passengers rattled like dice in a cup. The businessman sucked out of a hole punched in the plane’s skin by a bomb, dropping for three conscious seconds to the ground. The elderly couple who sat in the back of the vintage plane they had rented for a wedding-anniversary flight over the Caribbean, listening while their pilot (who, it seemed, had misread the gas gauge) desperately radioed for an airport within gliding distance. The helpless ground witnesses who heard screams coming from inside a burning fuselage.

And, because judges will hunt out analogies when they can’t find enough cases directly “on point”: the oil worker who put his foot on empty air near the top of an offshore oil platform and took a long two seconds to descend to the platform’s deck. The woman struck by a train who bled to death for seventeen minutes on the tracks while a panicked stationmaster tried to get an ambulance. The crewmen seen through fog clinging for long minutes to the upturned hulk of their wrecked ship.

I read only the passage in each case that described the victims’ last moments. When I learned how the judge and jury dealt with damages in that case, I moved on to the next. One anecdote of terror and delayed-death trod on the heels of another. Suddenly it was too much. I had to break off research and find an errand that would take me out of the office.

Returning to my notes, I realized that in order to make comparisons among cases, I’d have to convert the damages I found into per-second figures. Luckily, the figures slotted into a rough chart:

$138.89 per second (twelve minutes for $100,000)
$208 per second (two minutes for $25,000)
$333.34 per second (thirty seconds for $10,000)
$833 per second (six seconds for $5,000)
$1,250 per second (six seconds for $7,500)
$2,500 per second (six seconds for $15,000)
$5,000 per second (two seconds for $10,000)
$7,955 per second (eleven seconds for $87,500)
$10,625 per second (eight seconds for $85,000)
$15,000 per second (“death was almost instantaneous”)

All right, I thought, let’s assume that the two passengers in the case I was working on had each lived six seconds, the longest time possible. If so, the jury had priced their fear at $3,334 per second. Since this was within the range that other juries had awarded—and there was no other objection to that part of the verdict—my job was done. I summarized the research and explained my conclusion to the judge. He sent in his concurrence. I moved on to another assignment.

Everyone working on this case—the lawyers, the judges, myself—assumed that the unlucky couple who died on the runway in New Orleans had been wronged when they were forced to stare at their own deaths for six seconds, more wronged than if they had died without warning.

© 2004 by Paula Speck. Used with permission of Paula Speck.

About This Text

Paula Speck, from “Six Seconds.” Speck published this essay in the magazine Meridian in 2004. About our culture of compensation, she wrote elsewhere in the piece, “Where a medieval man might have been grateful for the chance to pray and where a Victorian might have choked out a last word for his family, we sue.”