Posts tagged as:

noneconomic damages

In 2004, truck driver Simon Loza Mejia violated company regulations, and took his eight-year-old Diana Yuleidy Loza-Jimenez along on a long-haul trip from Oregon to Bakersfield. That November 27, he was pulling away in the truck, but apparently didn’t bother to check where his daughter was, and ran over her. This was, argued her attorneys, the fault of her father’s employer—and a Sacramento County judge agreed with the argument that it was legally irrelevant that her father was the one who ran her over. Unsurprisingly, a jury ignorant of the facts awarded Diana, whose lower body was crushed, a jackpot verdict of $24.3 million, over $20 million of which was noneconomic damages. (Andy Furillo, “Sacramento jury awards record $24.3 million to girl run over by dad’s truck”, Sacramento Bee, Mar. 9 (h/t @BobDorigoJones)).

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Commentary’s Jennifer Rubin notices:

A friend points out a little nugget of absurdity and political mendacity in the Pelosi health-care bill. Remember Obama’s effort to try a “test” for tort reform? (We don’t actually need a test, since it has worked to lower medical malpractice coverage and help increase access to doctors in states that have tried it.) Well, Pelosi’s bill has an anti-tort-reform measure. On pages 1431-1433 of the 1990-page spellbinder, there is a financial incentive for states to try “alternative medical liability laws.” But look — you don’t get the incentive if you have a law that would “limit attorneys’ fees or impose caps on damages.”

In other words, Congress is providing a financial incentive to uncap damages. Marvelous.

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George Wallace reports:

Late [July 31], the California Court of Appeal issued its decision in the case of McMahon v. Craig, holding unequivocally that California law does not permit an animal owner to recover damages for his or her emotional distress at the injury or death of an animal caused by negligence, and that there can be no recovery of damages for loss of the companionship of a non-human companion.

The report is first-hand, for it was blogger Wallace who represented the winning side in the case. Congratulations are in order.

One out of ten colonoscopies result in nausea and vomiting; about one in 1000 colonoscopies will accidentally perforate the intestine, with potentially life-threatening side effects if not treated in a timely fashion. Kristen Freeman was one of the unfortunate one in 1000. While she complained of nausea and vomiting, she disregarded the instructions given to her about reporting her other symptoms, and so medical staff treated it like a more common case of nausea. By the time she admitted that her situation and pain was more dire, complications set in, and she suffered cardiopulmonary arrest, which in turn led to severe brain damage.

I won’t quibble with the jury’s assessment of damages of $12 million: Freeman was 33 and is now disabled for life, and in the randomness of noneconomic damages, $12 million isn’t the craziest award out there. But that the Hamilton County, Tennessee jury found gastroenterologist Michael Goodman 51% liable seems arbitrary. If doctors are required to assume that every patient reporting nausea but denying their situation is an emergency might be hiding more serious symptoms, and require them to go to the emergency room for testing (as the plaintiffs’ attorney argued Goodman should have done here), then that’s 100 wasteful emergency room cases for each real case—and not even a prevented case, since most patients follow instructions and report to the ER on their own when symptoms specific to perforation appear.

The article is on the Chattanooga Free Press web site, but the interesting discussion is in the comments, with friends of Freeman and seemingly knowledgeable doctors kibitzing. Freeman’s supporters argue that she did not actually experience any emergency symptoms and thus was not at fault at all. Even if true, that implies that they feel Goodman should be held responsible because he did not anticipate that Freeman was actually having an emergency when she presented asymptomatically: again, a demand for defensive medicine.

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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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Let us stipulate: when Rita Cantrell tried to pay for her goods with a thirty-year-old $100 bill, Target employees were foolish in being unable to recognize the old currency, and mistakenly identified it as a possible counterfeit. Cantrell fled the store when Target asked if she had another means of paying, raising suspicions, so Target security staff passed along a photo of Cantrell to 70 other local stores participating in a loss-prevention consortium to notify them of the incident. One of the stores recognized Cantrell as one of its employees and called in the Secret Service, which investigated, and found that the bill was real; Target passed along a new notice clearing Cantrell of any wrongdoing.

Cantrell, shaken and embarrassed by the involvement of the Secret Service and her employer, incurred $200 of medical expenses–and sued. Cantrell acknowledged that Target had a right to notify other stores of the incident, but complained that the manager could have worded his e-mail differently, and, besides, some of the members of the loss-prevention consortium did not have retail operations and thus did not need to know about the incident.  Notwithstanding Target’s motion for summary judgment, the court let the case proceed to a jury, which happily proposed that Cantrell be made a millionaire for the inconvenience–$100,000 in “compensatory” damages, and a 30-1 punitive damages ratio. Magistrate Judge Bruce Howe Hendricks entered judgment without touching the figure or waiting for post-trial briefing, and Target says it will appeal, so we’ll see what the Fourth Circuit does with this next year. (Cantrell v. Target Corp., No. 6:06-cv-02723-BHH (D.S.C. 2008); Eric Connor, “Jury set $3.1 milion award in Target case, lawyer says”, Greenville News, Oct. 28).

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“Sixty-five percent of those attending the ABA Annual Meeting session said they were better than average at predicting the settlement value of a case, and 76 percent said they were better than average at predicting when a trial court judgment would be reversed on appeal.”  But when asked a multiple-choice question on basic Bayesian statistics, only 34% of the attendees got it right–just nine points better than chance.  (The most popular answer was also the most incorrect.)  The ABA Journal blog also reports that attendees also suffered from severe cognitive bias on such issues as non-economic damages:

A hypothetical described a case involving a school teacher who lost his arm in an accident. Half were told that the plaintiff offered to settle for $100,000, and the other half learned of a $10 million settlement offer.

A majority of the $100,000 group said a judge would assess the value of pain and suffering between $500,000 and $2 million. But a majority of the $10 million group went higher, saying the value would be between $1 million and $5 million.

When even the lawyers and judges can’t accurately peg noneconomic damages, what other evidence do we need to show that uncapped and unscheduled noneconomic damages are unconstitutionally arbitrary and irrational?

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We hear frequently that the medical profession doesn’t do enough to police its own. Cases like that of Lawrence Poliner might explain why. In 1997, in response to complaints by nurses at Presbyterian Hospital of Dallas, and the allegation by a doctor that Poliner had performed an angioplasty on the wrong artery, the hospital asked Poliner to stop work while they investigated. These limited privileges lasted 29 days, followed by a unanimous decision to suspend, a five-month suspension from echocardiography privileges, and then reinstated Poliner five months later subject to conditions that he consult with other cardiologists.

For this, Poliner sued for defamation and under federal antitrust law, alleging that other cardiologists were trying to dominate the market and prevent his competition. The five-month suspension had federal immunity under the Health Care Quality Improvement Act, 42 U.S.C. § 11101 et seq. (just one of many federal tort reforms that promote safety), but the trial court held that the 29-day limited-privileges created a cause of action that should go to a jury. Poliner lost $10,000 in income over that time “but was awarded more than $90 million in defamation damages, nearly all for mental anguish and injury to career. The jury also awarded $110 million in punitive damages”–despite the fact that Poliner would have to prove damages were caused by the allegedly unprivileged temporary limitation rather than by the five-month suspension. We covered the initial $366 million verdict in 2004, the outraged medical blogosphere reaction, and the remittitur to a still ludicrous $22.5 million in 2006.

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Who says we never praise Democrats? Via Scheuerman, New Jersey’s Democratic governor Jon Corzine has vetoed a law that would have created unlimited noneconomic damages in wrongful death cases:

“[U]nlimited damages … could have a significant impact on state and local budgets, since government entities are not infrequently named as defendants in wrongful death suits, and there are similar concerns as the State undertakes efforts to attract and grow businesses here.”

“Unfortunately, I do not believe that this bill in its current form strikes a fair balance that would avoid using a strict monetary valuation of a person’s life while also addressing the adverse effect of allowing unlimited and unpredictable damages.”

He urged the Legislature to consider alternatives “granting more flexibility for courts to reduce excessive non-pecuniary damage awards and defining non-pecuniary damages less expansively.”

[NJ Law Journal/law.com; earlier: Jan. 9]

My latest Liability Outlook for AEI is about the Ford Explorer rollover litigation and what it says about products liability litigation in the US in general:

It went generally unnoticed last November when the California Supreme Court refused to review an intermediate court’s decision in Buell-Wilson v. Ford Motor Co. But then again, it went generally unnoticed when a jury awarded an arbitrary $368 million in damages in that case, when the trial judge reduced that verdict to an arbitrary $150 million judgment, and when an intermediate appellate court reduced that figure to an arbitrary $82.6 million (which, with interest, works out to over $100 million). Products liability verdicts have become so run-of-the-mill that even nine-digit verdicts and their aftermath receive only local or specialty press coverage, with cursory national coverage. But Buell-Wilson demonstrates much that is wrong with the current liability regime, including the fact that the media is so jaded by litigation abuse that a $368 million verdict is barely newsworthy.

I have a related letter to the editor in the Jan. 1 Legal Times. See also POL Dec. 13, OL Dec. 12, OL Jun. 3, 2004.

Medical tourism

by Ted Frank on September 26, 2006

Bumrungrad International Hospital in Bangkok, Thailand, treated 58,000 American patients in 2005, and looks to treat 20 percent more this year. Why?

At Bumrungrad Hospital, [spokesman Ruben] Toral said, the lower cost of living is a major factor in the savings, but so are differences in how the medical system operates.

Doctors in Thailand pay about $5,000 a year for malpractice insurance, compared with more than $100,000 for some specialties in the United States.

Thai courts will adjudicate malpractice claims, but the largest award ever issued was about $100,000 and the law there doesn’t permit damages for pain and suffering.

(Mark Roth, “Surgery abroad an option for those with minimal health coverage,” Pittsburgh Post-Gazette, Sep. 10). Apparently the Thais haven’t heard the propaganda from the American trial bar that caps on non-economic damages don’t lower malpractice insurance premiums or medical expenses. And apparently, thousands of Americans prefer cheaper healthcare to the opportunity to recover pain-and-suffering damages: unfortunately, plaintiffs’ organizations fight very hard to ensure that American consumers don’t actually get that choice. (Via, of all places, Bizarro-Overlawyered, where one can almost see the smoke coming out of the ears of the posting blogger because of the “Does-Not-Compute” cognitive dissonance.)

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Just as a media boomlet was getting started, a Clackamas County judge has ruled that Oregon law does not permit Mark Greenup and his family to seek loss-of-companionship damages over their neighbor’s having run over their mixed cocker spaniel-Labrador retriever, Grizz, an injury for which they were asking a cool $1.625 million. The case had been touted as a potential breakthrough in the campaign to authorize essentially unlimited monetary damages over the human unhappiness caused when a pet is killed or injured (see May 10, 2005, etc.) and advocates thought they had an unusually sympathetic fact pattern to work with: the Greenups’ neighbor, Raymond Weaver, had been convicted of first-degree animal abuse. Once the principle of damages for loss of companionship had been established, of course, it would be likely to spread to contexts where simple negligence was alleged on the part of veterinarians, drivers or animal handlers. Circuit Judge Eve Miller permitted the Greenups to seek punitive damages and intentional infliction of emotional stress against Weaver (who continues to deny that he harmed the dog intentionally) but said loss-of-companionship damages are barred by Oregon law. (“Judge rejects part of dog lawsuit claim”, AP/Roseburg (Ore.) News-Review, May 23; Steve Mayes, “Case Could Redefine Value of a Pet”, Newhouse/The Oregonian, May 23; “US neighbours in dead dog lawsuit “, BBC, May 23; letters to the editor, The Oregonian, May 24).

P.S. While we’re at it, what a very bad idea: federal mandates for pet evacuation plans.

Jackpot in San Diego

by Ted Frank on June 3, 2004

Drivers of the Ford Explorer have a lower fatality rate than drivers of other vehicles — and a lower fatality rate from rollovers than drivers of other SUVs. The NHTSA found that there was nothing wrong with the Explorer’s design after a spate of well-publicized accidents resulted in an investigation. Nevertheless, plaintiffs persist in filing lawsuits accusing the Explorer of being unreasonably dangerous. And one can see why: Ford has successfully defended the vehicle in at least ten consecutive jury cases, but on Wednesday a San Diego jury rewarded the latest roll of the dice with a $122.6 million verdict for a paraplegic plaintiff, Benetta Buell-Wilson. Ms. Buell-Wilson was driving at a high speed on Interstate 8, when the RV in front of her lost a large piece of metal; she lost control of the SUV when she swerved, and the vehicle went off the highway and flipped 4 times before landing on the roof. The jury returns today to deliberate the question of punitive damages. (Ray Huard, “$123 million awarded in SUV rollover”, San Diego Union-Tribune, Jun. 3; Myron Levin, “Jury Orders Ford to Pay $122.6 Million”, LA Times, Jun. 3) (via Bashman). “This was an extremely severe crash, and any SUV would have reacted in the same way under similar circumstances,” Ford spokeswoman Kathleen Vokes said. “Our concern goes out to Ms. Buell-Wilson and her family, but this tragic accident was caused by a combination of high speed and a large metal obstruction in the road.” (“Verdict ends Ford streak”, Detroit News, Jun. 3). Ford says it will appeal; the jury awarded four times more than what plaintiffs asked for.

Update: Jury awards $246 million in punitive damages. Ford protests that it wasn’t allowed to introduce evidence to the jury comparing the safety record of the Explorer to other SUVs. (Reuters, Jun. 3; Myron Levin, “Jury Adds Punitive Award in Ford Case”, LA Times, Jun. 4).

Update: Judge reduces damages to $150 million; Ford has appealed. (Michelle Morgante, AP, Aug. 19; Nora Lockwood Tooher, “Explorer Rollover Yields $368.6 Million Verdict”, Lawyers Weekly USA, Dec. 30).

As with all my posts, I speak for myself and not my firm or any of my firm’s clients (which include Ford).

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In my radio interview last week, I was asked about the Wisconsin Association of Trial Lawyers’ claim that tort reform measures have no effect on medical insurance rates. ATLA’s “fact sheet” on medical malpractice reform makes the same claim. A 2003 HHS compilation of studies on the matter, linked on our old medical page, refutes that proposition. (HHS, “Confronting the New Health Care Crisis”, Mar. 3, 2003 at Tables 6 and 7).

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