When plaintiffs request damages for noneconomic loss such as pain and suffering, courts are split on whether a defendant can require a plaintiff to disclose during discovery how much the plaintiff intends to ask the jury to award in noneconomic damages. A recent decision from a federal district court in Minnesota, however, required the plaintiff to do just that.

In Lewis v. City of Burnsville, 2020 WL 3496990 (D. Minn. June 29, 2020), the defendants asked the plaintiff during discovery to itemize the damages that she was seeking and “produce documentary support for her damages claim.” The plaintiff declined to provide this information, arguing that it was impossible to calculate her noneconomic loss. The magistrate judge, however, ruled that the plaintiff had to disclose how much she was seeking in noneconomic damages “along with the basis for that figure,” if the plaintiff intended to ask the jury for a specific dollar amount (or range) of noneconomic damages at trial.

Further, even if the plaintiff did not intend to ask for a specific dollar amount (or range) of noneconomic damages at trial, if she intended to offer any evidence at trial in support of her claim for noneconomic damages, she had to “disclose responsive discovery regarding the claim.” Otherwise, the plaintiff “could surprise the defendants at trial with a specific request of $1,000,000 for claimed emotional harm that was never previously disclosed contrary to the spirit and intent of the applicable discovery Rules.”

The idea, of course, is to avoid unfair surprise and give the parties a chance to respond to any evidence that the other side presents at trial. Krueger v. Grand Forks City., 852 N.W.2d 354, 363-64 (N.D. 2014) (affirming a district court’s decision to exclude any evidence of noneconomic damages as a discovery sanction when the plaintiff did not indicate until six days before trial that she was seeking noneconomic damages).

Not all courts have approached this issue the same way. Some courts have declined to require plaintiffs to provide a calculation of the noneconomic damages that they are seeking as part of their initial Rule 26 disclosures. See Sandoval v. Am. Bldg. Maint. Indus., Inc., 267 F.R.D. 257, 282 (D. Minn. 2007) (collecting cases). In other states, such as Pennsylvania, courts have prohibited plaintiffs from asking juries for a specific dollar amount in noneconomic damages, at least where these damages cannot be objectively calculated. See Mohnkern v. Gould, 2019 WL 6770679, at *2 (Pa. Super. Ct. Dec. 12, 2019) (collecting cases).

The Practical Takeaway from Lewis

In cases where the plaintiff may seek noneconomic damages at trial, defense counsel should consider asking the plaintiff for a calculation of those damages during discovery. Defense counsel also should consider asking the plaintiff to share any evidence that the plaintiff intends to offer in support of his or her claim for noneconomic damages. These requests can be made via interrogatory or as part of a standard set of document production requests.

If the plaintiff responds to these discovery requests with a boilerplate objection, defense counsel should evaluate whether they should bring a motion to compel. A favorable discovery ruling has the potential to unearth important evidence about the plaintiff’s noneconomic injuries or — in some cases — prevent the plaintiff from springing an unexpected damages theory on the defendant on the eve of trial.