The Court of Appeals for the Fifth Circuit held that allowing Plaintiff’s counsel, over objection, to make an argument suggesting a per diem or unit-of-time dollar amount which the jury should award for the loss of enjoyment of life did not constitute reversible error. In Foradori v. Harris, 523 F.3d 477 (5th Cir. 2008), Plaintiff, a customer in a restaurant, got into an argument with an off duty employee. The argument escalated into a fight which took place outside of the restaurant and in the parking lot. Plaintiff suffered injuries which left him a quadriplegic. The jury awarded a verdict of $20,881,844.41. Of this amount $10,000,000.00 was for past, present, and future physical pain and suffering, mental anguish and loss of enjoyment in life.
During closing argument Plaintiff’s counsel made a per diem or unit-of-time argument in support of the claim for loss of enjoyment of life. Defendant made a timely objection but did not request an instruction that the argument was simply counsel’s method of presenting his contention and was not evidence in the case. The Court first held that the District Court did not have a sua sponte obligation to give such an instruction. In addition, the Court pointed out that Plaintiff’s counsel did not present any charts or complicated calculations in support of a brief, simple oral statement. Further, the lawyer did nothing to disguise that he was asking the jury to accept his own suggestion of how much Plaintiff should be compensated per day for his loss of enjoyment of life and to multiply that amount by the number of days of his remaining expected lifetime, which had been estimated by expert witnesses. The Court in holding that there was no error said:
“Thus, in this case, the per-diem argument was plain and simple enough that, even without a cautionary instruction, it was clear to the jury that the unit-of-time argument is merely a method of presenting contentions, and is not to be considered as evidence.” (pp 512 – 13)