OK, not really.
Frivolous lawsuits are bad. Just about everyone agrees on that, though there’s plenty of room for reasonable disagreement as to what makes a lawsuit frivolous. What we don’t hear about nearly as often are frivolous defenses.
According to the New York Personal Injury Law Blog a defendant in a personal injury lawsuit has sent a demand letter to a plaintiff’s attorney demanding that any reference to “pain” be deleted from the injuries claimed in a lawsuit because “pain is not an injury.”
While it’s true that physical pain is generally an effect of which physical trauma is the cause, the defendants here seem to forget that pain, in itself, can be debilitating. If humans were incapable of feeling physical pain, many injuries which we view as horribly debilitating would be quite trivial.
For example, if you step on a nail, you probably won’t be able to walk correctly for several weeks afterward, even if the wound were somehow guaranteed to heal properly, not become infected, and not cause any permanent damage. It’s the pain caused by such an injury which would make it debilitating.
Based on that, it’s absurd on its face to claim that pain is not an injury. Relatively “minor” injuries (minor in the sense that they have relatively little impact on a person’s overall health and lifespan) can cause severe, long-term pain, which impacts a person’s quality of life, and their ability to earn a living. From this, it seems absurd on its face to argue that pain is not an injury, in the legal sense. After all, tort law exists to compensate the victims of wrongdoing for injuries, and the “value” (really, the cost) of an injury is generally calculated through objectively observable facts, such as medical expenses, lost wages, etc. The cost of pain can, at least in part, be measured by a diminution in a person’s earning capacity, which is an objective measure.
Of course, we also award damages for “pain and suffering” in the abstract – and usually leave the decision of how much to award to a jury, which is the best course of action, as ordinary members of a community, especially those who might have experienced similar injuries, are in the best position to gauge what such an injury is worth.
According to statistics generated from LegalMatch case, of the tens of thousands of personal injury clients who came to the website over the past year, the overwhelming majority describe their injuries in terms of the pain they suffered, such as chronic back pain, neck pain, and headaches, as well as other difficult-to-quantify injuries such as insomnia and memory loss.
According to this defense attorney, have they not suffered any injuries?