Abstract

Excerpted From: Nathan N. Cheek and Roseanna Sommers, Noneconomic Tort Damages and Biased Beliefs About Vulnerability to Harm, 75 DePaul L. Rev. 315 (Winter 2026) (Full Document)

A plaintiff who successfully establishes that a defendant is liable for their injury is entitled to compensation for the losses proximately caused by the defendant’s tortious conduct. Compensatory damages can be divided into two categories: pecuniary and nonpecuniary (also called economic and noneconomic). Pecuniary damages include lost earnings, medical costs, and other financial losses. Nonpecuniary damages, meanwhile, “are roughly synonymous with pain and suffering.” They include physical pain, mental anguish, loss of enjoyment of life, disfigurement, disability, and emotional distress, which can be further disaggregated into various negative emotional states, such as fear, anxiety, embarrassment, and depression. Nonpecuniary damages can also include loss of consortium or companionship.

The overarching goal of compensatory damages is to restore the plaintiff to their original position prior to their injury. Yet the idea of “making the plaintiff whole” is at best aspirational. If you break someone’s leg and then reset it, that person is not in the position they would have been in had they never been injured. They are worse off, in part because they have experienced pain, suffering, and related hardships.

For this reason, it is imperative for tort law to take account of the noneconomic costs of injuries. As scholars have noted, a compensation system that disregarded “nonpecuniary losses would grossly underestimate” the true cost of accidents and provide insufficient incentives for optimal prevention measures. The need to recognize and quantify plaintiffs’ pain, suffering, and diminished quality of life has also been emphasized for its “expressive importance.” As Martha Chamallas and Jennifer Wriggins have observed, noneconomic damages “function as a signal of the social worth of plaintiffs and a societal measure of their suffering.” Accordingly, if tort law systematically values some individuals’ pain and suffering more than others’, it undermines the principle of equal human dignity and reinforces harmful societal hierarchies.

1. Does the thick skin bias translate into monetary damages, such that lower-SES plaintiffs receive significantly lower compensatory damages for nonpecuniary losses, on average, than higher-SES plaintiffs with identical injuries?

2. How does prejudice (or sympathy) toward plaintiffs based on their socioeconomic status interact with the thick skin bias? More generally, how does the thick skin bias interact with other biases that presumably operate simultaneously (e.g., the unpacking effect; the anchoring effect of the ad damnum; the heuristic that general damages roughly equal three times special damages; racial bias)?

3. How does providing jurors with information about nonpecuniary awards in prior cases affect the thick skin bias? What is the effect of withholding such information from jurors?

4. Is the magnitude of the thick skin bias moderated by the type of injury the plaintiff suffers? We might compare, for instance, plaintiffs who suffer from harm-based torts (e.g., negligence, intentional infliction of emotional distress) to those who suffer from offense-based torts (e.g., offensive battery, trespass). Furthermore, we might investigate how people perceive individuals who have been injured wrongfully versus those who have been injured through no fault or wrongdoing by any party.

5. Is the thick skin bias mitigated if information about the parties’ socioeconomic status is concealed from decisionmakers (jurors)? What if jurors are instructed by the court not to consider the parties’ socioeconomic status in assessing damages?

6. Does screening out individuals who strongly endorse the belief that adversity leads to resilience result in juries that are less prone to the thick skin bias? Are there other individual-difference measures that could be used to screen out potential jurors?

7. What types of expert testimony, jury instructions, or arguments from attorneys are most effective in reducing the gap between high-SES and low-SES plaintiffs?

8. What are the downstream consequences of the thick skin bias for other aspects of legal decision-making? For example, past psychological research has shown that defendants who are perceived to have caused more severe injuries are more likely to be held liable than when injuries are less severe. If injury severity determinations spill over into liability determinations, might we find that defendants are more likely to be held liable when the plaintiff is relatively well-off, because (due to the thick skin bias) the harm they suffer is more likely to be perceived as severe? Furthermore, what are the implications of the thick skin bias for punitive damages? It stands to reason that if higher-SES plaintiffs are perceived as more severely harmed, the tortious conduct will be perceived as more egregious, and punitive damages will be higher.

Nathan N. Cheek is Assistant Professor of Psychology at the University of Maryland.

Roseanna Sommers is Professor of Law at the University of Michigan Law School.