Regarding Pained Sympathy and Sympathy Pains: Morality, and Empathy in the Civil Adjudication of Pain

ness and invisibility by making pain more "real," by specifically and vividly describing the impact of the injury on the plaintiffs life, elaborating tasks which recovery; and that the more severe the injury, the greater the rate participants discounted the award. FEIGENSON, supra note 4, at 79-80. Together, these conclusions reflect an anti-plaintiff bias, leading Feigenson to suggest that, though the participants felt sympathy, "something else overcame the expected effects of that sympathy." Id. at 80. 6. For a discussion of pain embodied and pain expressed, see Jody Lyned Madeira, Recognizing Odysseus' Scar: Reconceptualizing Pain and Its Empathic Role in Civil Adjudication, 34 FLA. ST. U. L. REV. (forthcoming Dec. 2006). 7. See generally 5 AM. JUR. Trials 921 § 59 (1966) (discussing the advantages and disadvantages of different methods for presenting testimony and evidence regarding pain). 2006] SOUTH CAROLINA LAW REVIEW the plaintiff cannot perform or can only do so with great effort, 8 and summoning forth interpersonal responses by stressing that the defense unnaturally advocates the suppression of the natural human desire to cure pain.9 In response, the defense must exploit the inascertainability of the plaintiffs pain, the defense's Achilles heel. ° A. The Role of Subjectivity in Defining Pain Pain expressed becomes subjective through the act of expression because it is socially constructed and thus is enunciated from a certain narrative position or subjective bias, such as that of the sufferer. Pain is also subjective in the sense that its meaning and expression are historically and culturally specific; its experience is also "not timeless but changing, the product of specific periods and particular cultures" and "cannot be reduced to a mere transaction of the nervous system."'" Pain "has not had the same significance throughout the ages nor in the various different civilisations; even within the framework of Western civilisation, . . . the collective memory recalls various episodes or circumstances where the limits of endurance were strangely removed, or virtually obliterated."' 2 Anthropological research has documented "culturally stipulated responses to pain-for example, the tendency of one population to vocalize cries; the tendency of another to suppress "'13 them .... Such theories were born out of wartime research on wounded soldiers. Just after World War II, Lieutenant Colonel Henry Beecher found that 25% of seriously wounded soldiers questioned within twelve hours of receiving wounds reported slight pain, while 32% reported no pain at all; even more surprising, 75% felt so little pain that they did not wish to take pain medication.14 Beecher posited that "[s]trong emotion can block pain"; the soldier's "wound suddenly releases him from an exceedingly dangerous environment," prompting the soldier to "overcompensate[] and become[] euphoric."' 15 Research by Mark Zborowski conducted among male veterans in San Francisco in the late 1960s revealed that Jewish and Italian veterans "tended to be uninhibited and expressive in their response to pain," but that Irish and white Anglo-Saxon veterans "tended to hide their pain, to avoid company, [and] to engage in strategies of silence and denial.' ' 6 Fascinatingly, evenAmerican Jurisprudence gets into the cultural act, positing that due to learned communal experiences a wounded French soldier is "conditioned to scream and thrash about" to receive gentler treatment from surgeons and nurses,