Objective Justice, Subjective Pain: A fresh look at pain and suffering in torts through the lens of neurolaw

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Eva Monteiro
B.C.L./J.D. III
Faculty of Law, McGill University

15 October 2020

On Sunday August 24th, 1924 Mrs. Palsgraf was waiting at the East New York station of the Long Island Railroad with her two daughters, for a train that they hoped would bring them to Rockaway Beach. As a man ran to get onto a departing train with a package under his arm, two guards tried helping him up resulting in the package falling to the tracks. This package contained fireworks, which set off an explosion in the train station, causing a scale to fall on Mrs. Palsgraf. Her injury was described as “shock” (which today has come to be known as nervous shock) by the New York Times. This condition gradually developed into a stammer, and then muteness later on in life. However, what remains of this case does not concern the calculation of nonpecuniary damages for pain and suffering. Rather it became a famous case about the scope of the duty of care, foreseeability and negligence in tort law. Even though her doctor testified at trial that this stammer developed as a result of this accident, Justice Cardozo in his reasoning for the majority dismissively skipped over this issue, transforming Mrs. Palsgraf into a plaintiff without age, family status or occupation, suffering from a nondescript injury. Perhaps, had she had access to an fMRI elucidating the effect this event had on her brain activity, this aspect of the case would not have been so quickly dismissed by Justice Cardozo.

Pain and suffering in neurolaw

“conscious experience is inseparable from the physical brain

The term neurolaw was first coined in 1991 and has rapidly grown into a promising field which attempts to understand the relationship between law and the brain, with the potential to shed significant light onto complex legal issues. It has proliferated with the rise of brain imaging technologies, such as electroencephalography (EEG), Positron Emission Topography (PET), Magnetic Resonance Imaging (MRI) and most notably functional Magnetic Resonance Imaging (fMRI). Importantly, neurolaw could become a valuable tool in crafting and calculating tort damage claims in a more equitable manner. Specifically, this could be useful in recognizing pain and suffering, which subsumes many non-economic losses such as mental anguish, loss of enjoyment of life or other “invisible” harms such as mild traumatic brain injuries, PTSD or toxic exposures.

The distinction between physical and psychological harm has long been drawn in tort law, distinguished on the basis that the former is readily apparent while the latter is not. The former may be visualized, either with the naked eye or with the help of an x-ray. As for the latter, we must rely on the words of the victim or alternatively the words of the doctor. However, neurolaw provides an opportunity to offer the same kind of visual information people trust and rely on so heavily in assessing so-called physical damage awards. It also allows people to conceptualize and visualize psychological harm as a physical mechanism which underlies these experiences. This visual component alone, regardless of whether the average judge, lawyer or jury member is able to meaningfully decipher it, holds heavy sway.

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Neuroimaging provides other advantages besides catering to our preference for visual information. It also solves some of the main concerns when it comes to psychological harm, notably that pain and suffering are notoriously easy to feign or that individuals will outwardly express the same amount of pain in very different ways. During jury trials, individuals may feel obliged to put on a show to impress upon the jury the veracity of their claims which in turn leads to vastly different amounts in damages for similar levels of pain. This has also led to a number of requirements for pain and suffering claims. “Nervous shock” could only be recovered if accompanied by a number of other actions: “[physical injury], physical proximity to a traumatic incident, consanguinity with the primary person injured or killed, that the plaintiff be a person of ordinary robustness or normal fortitude, and that the person suffer a recognized or recognizable psychiatric illness.” These requirements often end up being oppressive, discriminatory and lacking in conceptual justification. This technology provides a way to identify these latent and hidden injuries, so as to redress gaps between physical and psychological injuries, and between different outwards manifestations of similar levels of suffering. While pain and emotion are inherently subjective, this technology makes it possible to expose and quantify these harms in ways heretofore lacking. This change would allow tort law damage awards to shift their focus from the type of injury to the severity of the harm.

Personal pain

“More than 2,000 years ago Plato said: ‘No two persons are born exactly alike; but each differs from the other in natural endowments (360 B.C.).’ Such individual differences are a hallmark of the experience of pain

While neurolaw may allow us to rectify some of these inequities in tort law, some of the difficulties which surround the calculation and monetization of pain and suffering remain inescapable. Damages in tort law are meant to return plaintiffs as closely as possible to their condition before the accident, following the restitutio in integrum principle. However, when it comes to pain and suffering tort law can never fulfill this end as there is no rational correspondence or calculation to be made between pain and suffering, on the one hand and monetary damages, on the other. This can be contrasted to economic damages, which may possibly return the injured person to a pre-injured state by directly addressing the loss of earning capacity or hospital bills. Professor Richard Abel in his “Critique of Torts” has said that “damages [for pain and suffering] also dehumanize the response to misfortune, substituting money for compassion, arousing jealousy instead of sympathy, and treating experience and love as commodities.”

Pain has been explored extensively by artists, doctors and lawyers alike, for its elusiveness as it stubbornly resists precise definition or description and for its centrality to the human experience. Wilder Penfield, an important Canadian American neurosurgeon, described trying to define pain as analogous to “running through quicksand.” Definitions of pain range from “an unpleasant sensory or emotional experience associated with actual or potential tissue damage or described in terms of such damage” as defined by the International Association of the Study of Pain, to “whatever the experiencing person says it is, existing whenever and wherever the person says it does” according to Margo McCaffrey. However, what these and most definitions have in common is that they draw attention to the subjective nature of the experience of pain.

The definitional elusiveness of pain partially stems from this subjective element since most people will experience pain differently. Behavioural scientists among others have drawn a distinction between the physiological and psychological components of pain, notably the sensation of pain as contrasted to the response to pain. It has often been suggested that cultural and psychosocial factors have an effect on our response to pain. Furthermore, many physiological differences exist which will affect the individual’s pain reception. The processing of pain is considered to be one of the most complex human feelings and research on the topic has shown that the transmission and the resultant cognitive experience of pain is significantly affected by emotional, psychosocial and other subjective factors. It is not only the reception and the manifestation of pain which differs, but differing inputs will also have different effects on different people. The cerebral circuits associated with pain and the perception of pain are triggered by physical pain but also by depression, rejection, disappointment or personal social crises and upheavals to name but a few pertinent factors. These individual differences which may now become visible through brain scans will require a rethinking of tort law and the calculation of damages.

Pain and suffering at law

“We have come to accept almost without question the monetary evaluation of the immeasurable perturbations of the spirit

What does tort law do with this pain? As mentioned above, it tries to make the victim whole again, by assigning a monetary value to the pain the victim has felt. This is done to fulfill broader goals of tort law, such as properly allocating and extending these losses to the actors who should be held accountable for these harms, as well as to fulfill tort law’s deterrence-incentive based goals. Pain and suffering as well as other types of psychological impacts are now recognized as separate causes of action (whereas complaints of “nervous shock” used to necessarily be accompanied by other actions). In the calculation of these non-pecuniary damages, three theoretical approaches have emerged, namely: the conceptual, personal and functional approaches. While the conceptual approach treats each faculty as a proprietary asset with an objective value and the personal approach attempts to value the injury in terms of the victim’s loss of happiness, the functional approach takes this latter approach into consideration as it attempts to provide the victim with reasonable solace for his/her misfortune. Solace here, means using damage awards to provide the victim with arrangements which will make life more endurable. In recognizing these three approaches, Canadian judges have acknowledged that in some cases the restitutionary objective of making the victim whole again is not possible, but that instead “money is awarded because it will serve a useful function in making up for what has been lost in the only way possible, accepting that what has been lost is incapable of being replaced in any direct way.”

With the emergence of the recognition of “nervous shock” or pain and suffering as causes of action to be compensated for in and of themselves separately from bodily or property damage, many jurisdictions have started to require expert evidence to support these claims. In Canada, for a long time the standard was one of a “Recognizable Psychiatric Illness.” As the Insurance Bureau of Canada (IBC) argued in Saadati v Moorhead, “allowing for highly subjective secondhand lay evidence to support claims for psychological harm would be a risk difficult to quantify as a projected premium risk.” This highlights the driving goals of tort law which shape the law’s framing and valuation of human experiences. The IBC’s pleading tried to make a case for the incommensurability of allowing recovery of “non-recognizable” psychiatric illnesses, with tort law’s evidentiary hurdles and loss allocation and deterrence-incentive based goals.

Saadati however is not known for the above passage, but rather for its decision that in Canada, expert evidence is no longer required to determine whether a claimant has proven a mental injury. Justice Brown stated that while expert evidence remains relevant it is no longer required as a matter of law and that the trier of fact may adduce other evidence to find that on a balance of probabilities there is an occurrence of mental injury. However, it must be demonstrated that “the disturbance suffered by the claimant is serious and prolonged and rise[s] above the ordinary annoyances, anxieties and fears that come with living in civil society” and that it must be more than a “mere upset” as was established in Mustapha v Culligan. Further, the Supreme Court of Canada confirms in Saadati that mental and physical injuries are to be treated identically.

Neurolaw?

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With this Canadian development in mind, what equity advantages may neurolaw bring? Canadian courts seem to have fully embraced the legitimacy of pain and suffering as injuries which must be compensated. By shifting the focus away from “Recognizable Psychiatric Illnesses”, the court acknowledges the complexity of these harms and does not impose more barriers than are necessary to prove other harms. While fMRIs still offer many advantages, some of which will be briefly outlined below, they raise other concerns as their use could be seen as yet another attempt by the law to quantify and monetize the most fundamental and private parts of our existence.

While Canadian jurisdictions have made great strides in trying to abolish the physical/mental divide in tort law, there are still many psychological ailments and elements of pain which neuroscience could help shed light on. For one, advancements in neuroscience helped obviate this divide by detecting previously hidden or latent injuries. It shed light on the specific neural correlates of emotional pain, and identified the abnormalities in the hippocampus, adrenal systems, amygdala and cortices which caused many psychiatric disorders, or which were caused by traumas. While these represent important strides and have significantly increased justice for many, neuroscience continues to evolve and continues to shed light on age old issues, identifying new neural “signatures” of acute and chronic pains which then allow for identification on the individual level, while the law continues to try and keep abreast of these developments.

The development of neurolaw remains a worthy endeavour, as civil litigation relating to the existence and extent of a litigant’s pain accounts for $150 billion in the United States alone. These relate to a plethora of legal proceedings from disability, insurance, product liability, medical malpractice, workers’ compensation, personal injury and pain and suffering. Neuroscience can corroborate the level of pain claimed, how certain pain has likely reshaped the brain, or provide evidence for those who cannot communicate such as infants or the unconscious. Some studies have suggested that words, tones, threats, bullying and emotional abuse can all cause neurochemical changes. These changes may in turn affect a student’s ability to perform in school, for example, or could increase the likelihood of future disease or premature death. These are harms which Canadian courts would still be likely to classify as “mere upsets”, and so the work of neuroscience and the development of neurolaw goes on.

However, brain scanning technology is not yet a “fraud-o-meter, pain-o-meter, or mind-reading machine.” It can be useful as one piece of evidence among many, but Professor Kelly Joyce cautions us that our biases in favour of these brain scanning methods are founded on shaky assumptions about visibility, technology and transparency. While this technologically and visually enticing tool is promising it should not become a complete substitute for current methods of assessing pain and suffering and psychological injury. Some scholars argue for example, that our own innate ability to read others’ minds should not be discounted: “our brains are well equipped by natural selection to read other people’s minds.” fMRI scans do not always meet the requisite level of certainty and still cannot establish causation between the pain felt and its cause since differences seen in brain scans after painful events could have been contributorily affected by other events, and therefore can prove no more than correlation. It also faces hurdles in terms of its reliability: seeing as it usually lacks an initial baseline for victims, it tries to extrapolate information which has been gleaned from generalized studies to specific instances, confounding social and environmental factors exist which may influence the data and finally the rate of false positives and negatives is currently unknown. Applying this science prematurely and exaggerating its current reliability could lead to as much injustice as it would justice.

Objective justice, subjective pain

fMRI is not and will never be a mind reader
“if there is a quintessential zone of human privacy it is the mind

Both of the above quotations identify the mind and not the brain as the epicenter of the controversy surrounding neurolaw. Two common theories are often presented in addressing the mind-body problem: dualism and materialism. Dualism stipulates that the mind is non-material and that the body is material, whereas materialism holds that there is nothing beyond the material. Which theory one abides by will have different implications as to whether fMRIs are viewed as “intruding” into our minds. Dualists may have no issue with neuroimaging, as brain scans would not be able to discern that which is non-material. It is rather materialists which might ultimately see this as an infringement upon our most private of spaces.

What can more tangibly be infringed upon, is our subjective experience of pain. In recent years there have emerged “hedonic” or “subjectivist” perspectives in response to the development of brain scans, which strive to quantify subjective states of mind. Subjectivists hold that this is the most straightforward and just way to compensate for the pain truly experienced by each individual. This would also allow for more objective ways of assessing the severity of pain, by comparing it to that felt by other people. The victims could then be compensated with the same “amount” of pleasure (which translates into money) as the pain they have felt. However, Professor Amanda Pustilnik brings to our attention the fact that, in the past, the discourse surrounding pain has served as a heuristic for values, in trying to solve “normatively freighted legal problems” and that trying to resolve these conundrums by quantification would be profoundly misguided. The objectification of our subjective experience could pose other problems. For example, could these technologies give us grounds to say that someone’s subjective experience is wrong? Under what guiding premise do we feel justified to offer a monetary valuation for unpleasant emotional experiences? Could this impose an onus on victims to try and mitigate resulting emotional distress by taking medication or seeing a therapist? Conversely, could this encourage victims not to take these rehabilitative measures? This brings into sharp focus the need to incorporate these technologies into the law slowly and carefully.

Finally, this also infringes upon the privacy of our subjective experiences. These experiences are private in the descriptive sense that no one else knows the exact emotion felt by an individual, and in the normative sense that we should not be compelled to reveal information about our inner state and our emotions if we do not wish to. Effectively, as it was provocatively declared by one group of scientists, neurolaw allows us “to bypass the peripheral nervous system […] and gain direct access to the seat of a person’s thoughts, feelings, intention, or knowledge.” However, pain is special. Pain usually engenders feelings of sympathy, and victims are often eager to find ways of legitimizing their pain. fMRIs targeting the identification of pain reveal little about our social and political views, or our personal character and would therefore have fewer implications for our freedom and privacy of thought.

With all this in mind, would Mrs. Palsgraf have benefited from, or welcomed this technology? Pain may just be one field where the data to which neuroscience can give us access outweighs the concerns regarding the quantification of our subjective experiences and invasion of privacy. It is likely that Mrs. Palsgraf would have liked her pain and suffering recognized, rather than diminished as it was.

All links accessed on the 27th of August 2020.

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