## Facts

- Susanne Debus was injured while shopping at a Grand Union supermarket when a pallet stacked high with boxes of canned pet food toppled during routine restocking and fell onto her.
- Debus sustained significant injuries resulting in a 20% permanent disability and continuing pain and suffering.
- Debus brought a premises-liability action in Bennington Superior Court.
- At closing, Debus’s counsel used a per diem argument for noneconomic damages, suggesting an amount for daily pain and suffering and referencing multiplication over Debus’s expected remaining lifespan, while stating the calculation was only a helpful framework.
- The jury returned a verdict for Debus and awarded $346,276.23 in damages.

## Issues

1. Whether permitting a per diem closing argument to quantify pain-and-suffering damages is improper or so prejudicial that it should be barred as a matter of law.
2. Whether, if per diem argument is permitted, the trial court must give special cautionary instructions beyond the standard instruction that counsel’s arguments are not evidence.
3. Whether the jury instructions on future damages (including life expectancy and future pain and suffering) were erroneous or invited speculation.
4. Whether limited references to liability insurance required a new trial due to prejudice.
5. Whether references to the defendant as a corporation improperly suggested greater ability to pay and prejudiced the verdict.
6. Whether additional alleged trial-management errors, individually or cumulatively, required reversal.

## Decision

- The Vermont Supreme Court affirmed the judgment for Debus.
- Per diem argument for pain and suffering was permitted as advocacy when subject to trial-court supervision and was not inherently prejudicial.
- The trial court did not abuse its discretion by declining to give special cautionary instructions; the standard instruction that arguments of counsel are not evidence was sufficient.
- The future-damages instructions, viewed as a whole, correctly stated the law and properly directed the jury to rely on evidence and reasonable inferences rather than speculation.
- Brief references to insurance did not warrant a new trial absent a showing of prejudicial effect.
- Referring to Grand Union as a corporation was accurate and, without a showing of prejudice, did not justify disturbing the verdict.
- No other claimed errors justified reversal, either individually or in combination.

## Legal Principles

- A per diem method for arguing pain-and-suffering damages is permissible as a rhetorical tool and does not convert counsel’s suggested numbers into evidence.
- Trial courts have discretion to supervise closing argument; opposing counsel may respond by challenging the suggested figures as excessive or speculative.
- A general instruction that attorney argument is not evidence may be sufficient to address any risk that jurors treat per diem calculations as proof; special instructions are not required absent circumstances showing need.
- Jury instructions on future damages are reviewed in their entirety and are upheld if they correctly state the law and direct jurors to base awards on evidence and reasonable inferences.
- Incidental references to liability insurance do not require a new trial without demonstrated prejudice.
- Accurate identification of a defendant’s corporate status is not reversible error without proof that it unfairly influenced the jury.

## Conclusion

The court upheld a personal-injury verdict against a retail defendant and held that per diem arguments for pain and suffering are allowed in Vermont under judicial control, with standard “argument is not evidence” instructions ordinarily providing adequate protection against unfair prejudice.


Debus v. Grand Union Stores of Vt., 621 A.2d 1288 (Vt. 1993)