By Michael Shemtoub, trial attorney, Beverly Law. Updated November 2026.
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What jurors are told in each state
In California, the standard instruction is CACI 3905A. It tells jurors that “no fixed standard exists” for deciding noneconomic damages and that they must use their judgment to reach a reasonable amount based on the evidence and their common sense. The categories can include physical pain, mental suffering, loss of enjoyment of life, disfigurement, physical impairment, grief, anxiety, humiliation and emotional distress. Pain in the future counts only if you prove you are reasonably certain to suffer it, and that future amount is not cut down to present cash value.
Texas defines noneconomic damages by statute. Civil Practice and Remedies Code 41.001(12) lists physical pain and suffering, mental or emotional pain or anguish, disfigurement, physical impairment and loss of enjoyment of life, among other losses. In Gregory v. Chohan (2023), the Supreme Court of Texas said juries get “a measure of discretion” but that this discretion “is limited.” The lead opinion asked for “a rational connection, grounded in the evidence, between the injuries suffered and the amount awarded,” while adding that mathematical precision is not required.
Washington leaves the amount to the jury. In Sofie v. Fibreboard Corp. (1989), the state Supreme Court struck down the 1986 statutory limit on noneconomic damages as a violation of the right to trial by jury, according to a Washington House bill report describing the case. The court treated the amount of these damages as a factual question for jurors.
| California | Texas | Washington | |
|---|---|---|---|
| Who sets the amount | Jury, using judgment and common sense (CACI 3905A) | Jury, with an amount tied to the evidence (Gregory v. Chohan) | Jury; the 1986 statutory limit was struck down (Sofie) |
| Medical negligence limit | $350,000 for cases filed from 2023, rising $40,000 a year (Civ. Code 3333.2) | $250,000 per claimant against physicians (CPRC 74.301) | The 1986 general limit was struck down (Sofie) |
| Your own share of fault | Reduces the award (Li v. Yellow Cab) | No recovery above 50% (CPRC 33.001) | Reduces the award (RCW 4.22.005) |
How lawyers argue the number
California lets a lawyer suggest a daily rate. In Beagle v. Vasold (1966), the California Supreme Court held it was error to stop counsel from proposing that pain and suffering be measured on a per diem basis. A lawyer who does that is “merely drawing an inference from the evidence,” the court wrote. The judge can tell jurors that the lawyer’s damages figure is not evidence and that they are not bound to any method of calculation.
Texas is stricter about how a figure is framed. In Gregory, the plaintiffs’ lawyer compared the losses to a $71 million fighter jet and a $186 million painting. The court called those comparisons “unsubstantiated anchors” and sent the case back to the trial court for a new trial. The opinion says the rational basis for an amount can come from a lawyer’s argument, as long as that argument connects the figure to the evidence about this person’s injury.
Adjusters and some websites talk about multiplying the medical bills by a number. None of the instructions, statutes or opinions on this page uses a multiplier, and a jury is free to ignore one.
The evidence that moves the amount
Jurors respond to detail. Saying “my back hurts” carries less weight than describing the morning you could not lift your daughter, the shifts you gave up, or the drive you now avoid. Gregory repeats the Texas test from Parkway Co. v. Woodruff: evidence of the “nature, duration, and severity” of mental anguish, and anguish that causes a substantial disruption in daily routine or a high degree of mental pain and distress. Our page on emotional distress claims in Texas covers that case in more depth.
Useful proof usually comes from several directions. Treating doctors document diagnosis, restrictions and the expected course of recovery. Family members, coworkers and friends can describe changes they saw. Photos of scars or a cast speak for themselves. A short journal written close to the time often helps you remember specifics at a deposition years later. For anxiety and sleep problems after a crash, see compensation for anxiety after an accident.
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Rules that can bar or limit pain and suffering
California’s Civil Code 3333.4 takes noneconomic damages away in vehicle cases from an injured person convicted of DUI for that driving, an owner whose vehicle in the crash was uninsured, or a driver who cannot show the required insurance. Subdivision (b) adds that no liability or uninsured motorist insurer has to pay those losses either, so your own UM coverage does not fill the gap. An uninsured owner hit by a driver convicted of DUI for the crash keeps the right to these damages. See hit by an uninsured driver in California for how this plays out.
Medical negligence cases have their own limits in two of the three states. Under Civil Code 3333.2, the California figure for an injury case filed on or after January 1, 2023 began at $350,000 and grows by $40,000 each January 1, which puts it at $470,000 for a judgment, award or settlement in 2026. Texas sets $250,000 per claimant for claims against physicians and other non-institution providers in CPRC 74.301, with separate figures for hospitals.
What this means for your case
The pain and suffering figure in a settlement is a forecast of what jurors would do with your evidence, limited by the insurance actually available. Follow the treatment your doctors recommend and tell them about every symptom, including sleep, mood and memory. Write down what you can no longer do and when it happens. Do not exaggerate, because the defense will compare your words with your records, your social media and what its own doctor finds at a defense medical exam. For the other pieces that make up a claim’s value, read how lawyers calculate settlement value.
Texas cases are handled by the firm’s Texas-licensed attorneys, Joyce Ondich and John Efstathiou.
Common questions
Is there a formula for pain and suffering?
No. California’s jury instruction says no fixed standard exists, Texas asks only for an amount rationally tied to the evidence, and Washington treats the amount as a jury question.
Can my lawyer ask the jury for a per-day amount?
In California, yes. Beagle v. Vasold allows a per diem argument, and the judge may remind jurors it is argument and not evidence. In Texas, any figure should be grounded in the evidence of your injury after Gregory v. Chohan.
Can I recover for pain I will have in the future?
Yes, if you prove you are reasonably certain to suffer it. In California, the jury sets that future amount in current dollars without reducing it to present value.
Does Washington cap pain and suffering?
The state Supreme Court struck down the 1986 statutory limit in Sofie v. Fibreboard Corp. as a violation of the right to a jury trial.
Does pain and suffering go down if I was partly at fault?
In California and Washington, your share of fault lowers the whole award by that percentage. In Texas, the same reduction applies unless your share is above 50 percent, which ends the claim. Beverly Law offers a free case review in English or Spanish at (310) 552-6959. You owe no fees or costs unless we win. Other common injury questions are answered in our injury law FAQs.
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Related pages
Sources
- CACI No. 3905A, Physical Pain, Mental Suffering, and Emotional Distress (Justia reproduction of the Judicial Council ins (justia.com)
- Beagle v. Vasold (1966) 65 Cal.2d 166 (Stanford SCOCAL) (scocal.stanford.edu)
- Cal. Civ. Code § 3333.4 (leginfo.legislature.ca.gov)
- Cal. Civ. Code § 3333.2 (leginfo.legislature.ca.gov)
- Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 (Stanford SCOCAL) (scocal.stanford.edu)
- Tex. Civ. Prac. & Rem. Code § 41.001(12) (statutes.capitol.texas.gov)
- Tex. Civ. Prac. & Rem. Code § 74.301 (statutes.capitol.texas.gov)
- Tex. Civ. Prac. & Rem. Code § 33.001 (statutes.capitol.texas.gov)
- Gregory v. Chohan, No. 21-0017 (Tex. June 16, 2023) (txcourts.gov)
- Washington House Bill Report, HB 1910 (2003), describing Sofie v. Fibreboard Corp., 112 Wn.2d 636 (1989) (lawfilesext.leg.wa.gov)
- RCW 4.22.005 (app.leg.wa.gov)
Important: This page is general information, not legal or medical advice, and reading it does not create an attorney-client relationship. Every case is different; talk to a lawyer about yours. Texas cases are handled by the firm’s Texas-licensed attorneys, Joyce Ondich and John Efstathiou. Last reviewed: November 7, 2026.