September 21, 2017 by Brian Gibbons Of Interest 0 comments
Food for Thought Regarding Quantum of Bodily Injury DamagesAs defense attorneys and claim professionals, we collectively talk about case values in nearly certain terms. A surgically repaired meniscus is worth X, a SLAP tear is worth Y, a cervical fusion is worth Z, and so on. (I’m not posting injury values here, lest a crafty plaintiff attorney reference our blawg at a mediation some day.) And while the facts of a case, differing treatment histories, witness presentation, or intangible factors invariably offer reasons to deviate from our initial numbers, the injury itself does offer a starting point, a baseline. And we develop these baselines from our experience, from verdict searches, and by assessing risk at trial. But for the most part, the jurors who actually decide on the case values begin their jury service with absolutely no idea what an injury is “worth,” in terms of compensatory damages. Case in point — we were recently on trial in New York County, which, compared to other NYC boroughs, trends toward more reasonable damages awards. (Of course, this is a very broad characterization of the boroughs.) Without getting into the specifics, plaintiff’s counsel was looking for $250,000 for her client, who was injured in a pedestrian knockdown, and already had summary judgment on liability. We saw damages much closer to $100,000. (The case settled after plaintiff’s testimony for $125,000.00.) After the jury was disbanded, we spoke with one of the dismissed jurors, who was curious about how settlement talks had progressed. (Jurors are savvy enough to realize that settlement discussions are taking place outside of their presence.) We informed the dismissed juror that the plaintiff, who had just testified, and was not particularly endearing or sympathetic, had been seeking at least $200,000 to settle. The juror, who was college educated, attentive, and worked for a venture capital firm, immediately responded, “Oh, is that all? I would have thought way more.” Yikes. Granted, we had not yet presented our witnesses, but the $125,000 settlement now looked even better. When the jury is only asked to decide a quantum of damages, as opposed to issues of credibility, liability or causation, their calculus may be less scientific than we would prefer. Perhaps jurors are used to seeing subway ads, which constantly remind commuters about multi-million dollar verdicts. Or, perhaps those who work in the venture capital world, like my juror, deal with too many “zeroes” in terms of dollars, and are not ideal defense jurors for damages. Who knows? We continue to rely on our experience, and on intimately knowing the facts and law of our case, so we can stick to our guns on values. But jurors do not bring the same experience into the courtroom. It’s our job to mold their thinking toward our planned conclusion.