Carelessness for millions in New York City

by Ted Frank on April 17, 2009

Dustin Dibble was intoxicated when a Manhattan subway train ran over him in 2006, but a jury found the transit authority 65% responsible in February: $2.3 million for the lost right leg.

James Sanders stumbled onto the tracks and was hit by a train in 2002, but a New York City jury again found him only 30% responsible: $7 million for a lost right leg and eye.

Gloria Aguilar did not look both ways when she crossed the street; there was a dispute whether she was in the crosswalk. A Manhattan jury–after a seven-week trial–found the transit authority 100% responsible, and awarded $27.5 million for her lost left leg; a judge refused to reduce that figure.

Clearly a left leg is more valuable than a right leg. Or, as I’ve noted several times in the past, noneconomic damages are essentially random jackpots.

New York City is appealing all three verdicts. (Liz Robbins, “Woman Run Over by Bus Is Awarded $27.5 Million”, New York Times, Apr. 16).

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1 Eric T 04.17.09 at 9:10 am

Ted:

The article does not say that the awards were all for pain and suffering (non-economic loss).

In the verdict from yesterday, in fact, there is this part:

Two weeks later, Mr. Rubinowitz said, doctors had to perform another operation to amputate her leg to the groin, because of infection. She has been unable to work since then, he said.

While that small bit is hardly a substitute for a seven-week trial, I think it’s clear that your theory that the awards are all for non-economic loss are, as we like to say in the courtroom, unsupported by the evidence you have presented.

In addition, New York does have an appellate system, where awards that deviate materially from what would be reasonable compensation (either too high or too low) are struck down, which knocks down your argument that justice is little more than a “random jackpot.”

2 MAS1916 04.17.09 at 11:56 am

Wow… the 41,000 people in New York that actually pay taxes must be outraged.

3 Alton 04.17.09 at 1:34 pm

.ERIC T SAYS:

..In addition, New York does have an appellate system, where awards that deviate materially from what would be reasonable compensation (either too high or too low) are struck down, which knocks down your argument that justice is little more than a “random jackpot.”

If the award materially deviated from what would be reasonable compensation, why would that fact not be obvious to the supposedly “reasonable” jury, “reasonable” attorneys, and a “reasonable” trial judge?

If the appellate court upholds, reduces, or increases the award in a 5-4 descision, would that not be evidence that “reasonable” minds differ on what constitutes “reasonable” compensation? Even if an award was found to be unreasonable by concensus, who decides, and how is the amount constituting the “material” deviation from the elusive “reasonable” award determined? Is this something only appellate judges are qualified to determine?

The notion that “it can all be fixed on appeal” is small comfort and adds to, not diminishes the random jackpot nature of the system.

4 Eric T 04.17.09 at 2:40 pm

If the award materially deviated from what would be reasonable compensation, why would that fact not be obvious to the supposedly “reasonable” jury, “reasonable” attorneys, and a “reasonable” trial judge?

It usually is. Most verdicts don’t get touched. Remember, only the exceptional ones make the papers.

But no system is perfect. So in the event a verdict that is completely out of whack with reality, there is a back-up built into the system.

5 Ted Frank 04.17.09 at 3:22 pm

@1 Eric T. writes The article does not say that the awards were all for pain and suffering (non-economic loss).

Of course, neither do I. And, of course, it’s quite plain that these multi-million dollar awards had a substantial non-economic damages component, which very likely was the lion’s share of the award. And it’s also quite plain that relatively similarly situated plaintiffs got wildly different awards.

It’s not the case that only “exceptional” verdicts make the paper; as the other verdicts demonstrate, multi-million dollar verdicts against this single defendant are nearly a monthly event in Manhattan courts.

6 Nancy Swan 04.17.09 at 3:36 pm

Oh my gosh! When Obama announced he was going build a high speed rail system, I bet lawyers are sharpening their swords and lining up clients, eying the next pot of gold,

7 Eric T 04.17.09 at 4:47 pm

It’s not the case that only “exceptional” verdicts make the paper; as the other verdicts demonstrate, multi-million dollar verdicts against this single defendant are nearly a monthly event in Manhattan courts.

Of course only exceptional ones make the paper. You’re just being silly. Why would newspaper report, for example, a pedestrian knockdown case with a broken leg, surgery and a $50,000 verdict?

The three accidents took place in 2002, 2005 and 2006. That they were all tried in recent months doesn’t exactly show anything, except that there was an exceptional confluence of events that put them in the courthouse in closer proximity to each other than the actual accidents.

8 Ted Frank 04.17.09 at 8:05 pm

Well, then that’s like complaining that only the exceptional earthquakes make the newspaper. The problem is a system that permits such “exceptional” cases to happen all too frequently, because it encourages lottery litigation.

9 Bill Poser 04.17.09 at 8:34 pm

“And it’s also quite plain that relatively similarly situated plaintiffs got wildly different awards.”

What’s so plain about this? The article gives no information whatever about the occupations of the victims. Loss of a leg can have enormously different economic consequences for different people. For a professional athlete, construction worker, or dancer, it is a career-ender. For someone who sits at a desk, it has a minimal effect on employment.

10 Eric T. 04.17.09 at 10:25 pm

Ted:

Something else about jury awards in New York: The jury makes a full award without discounting. This gives high jury numbers as wage losses increase over time.

But money has a time value also. And so after the award is given, the judge does a reduction to present value pursuant to CPLR 50-A and 50-B. The judge uses the discount rate in effect at the time of trial. Judgments over 250K for future losses get structured and paid out as an annuity.

The court will also make deductions under our collateral source rule (CPLR 4545). Medical payments that will be paid by insurance with reasonable certainty get deducted from the verdict (if they had been claimed).

The article, of course, doesn’t break out how the damage awards in the three cases were made as between the different categories.

So what you see in the headlines is what you get. And the idea that one could draw conclusions about the relative aspects of the damage awards in the three cases based solely on the Times article is, in a word, preposterous.

For more information on damages and jury awards, I would highly recommend a new blog by John Hochfelder, New York Injury Cases Blog: http://www.newyorkinjurycasesblog.com/

John has been going beyond the scant info in published reports and pulling briefs and calling the lawyers involved to more fully develop how damages compare from one “similar” case to another.

11 Eric T. 04.17.09 at 11:07 pm

So what you see in the headlines is what you get.

Let’s try that again:

So what you see in the headlines is notwhat you get.

And that’s what I get for commenting on a blog when I should be packing to leave town for a race.

12 William Nuesslein 04.18.09 at 10:41 am

If you multiply $50,000 by 40 years, you get the good, if a bit high, estimate of the lifetime income for an average Joe of $2M. How does one get to $27.5M, even if you throw in a couple mil for medical expenses? And how can any rational person hold that cities can prevent bus accidents? The jury in the bus case clearly failed.

Most people believe that irrationally high verdicts are written down by the judge or the appellate courts. But that only means that jury error has been mitigated, not necessarily corrected. My impression is that the write-down process is as haphazard as the jury process.

The annual amounts of payouts per citizen by New York City have been compared to similar statistics from other cities in the United States and in the world. I suspect that Ted Frank has those numbers. For example, Bronx juries are twice as generous as juries in other boroughs.

13 Anonymous Attorney 04.20.09 at 4:58 pm

The fact remains that non-economic, i.e. “pain and suffering” damages are the high-power wedge that plaintiffs can use to file suits even in cases of low actual damages, and the “wild card” that scares defendants into paying out a big chunk even in cases of dubious liability.

It’s also what makes Eric Turkewitz’s one-third contingency rate (or whatever it may be) feasible, I imagine (if someone actually had 20K in medicals and 10K in lost wages, it would seem unfair that they only g0t 20K from the jury, no?)

So why not get rid of them?

Or even set up three levels of statutory “pain and suffering” with fixed amounts: $1,000 for minor, $10,000 for medium and even $100,000 for maximum?

Because not knowing whether you’ll be hit for $1 or $1 million in “pain and suffering” is just not a part of a LEGAL SYSTEM, which by definition lets society know what the punishment will be if they screw up.

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