We were contacted recently by a long-time client who was faced with trying their first admitted liability case after decades of practice. In this case, a young woman in the hospital got out of her bed, fell, and hit her head. Despite having no visible signs of injuries and denying she was hurt, she in fact had suffered a subdural hematoma. Hours after the fall, she slipped into a coma and ultimately passed away. The Plaintiff in this case was the decedent’s half-brother and under state law was only entitled to recover damages for two things – any conscious pain and suffering the decedent suffered before her death as a result of the accident, and his own loss of consortium. The Plaintiff was asking for $45 million dollars.
In approaching this case, there were a number of challenges. Despite the law being clear about what kinds of damages a Plaintiff can and cannot recover, it is often difficult for jurors to separate out these discrete categories of damages, especially when it comes to less tangible issues such as emotional distress and loss of consortium. In this case, we had concerns that, despite the law and the instructions from the judge, jurors would consider numerous outside factors into their award, such as the Plaintiff’s grief, consideration of her lost earnings, compensation for the decedent’s fiancé, or a desire to punish the hospital for her death, given they had admitted they were at fault. We also worried that jurors could potentially be insulted by the $500,000 number that we were going to be offering, given that the Plaintiff’s $45 million value was significantly higher. Despite the Plaintiff’s valuation not having a strong evidentiary basis, the fact that the Defense was accepting responsibility meant that even if jurors compromised, they could still easily award $20-30 million.
Another major concern was how to present our criticism of the Plaintiff’s damages numbers in a way that felt sensitive to the fact that the Plaintiff had, in fact, lost his sister. It is a fine line to walk, especially in a case where you are accepting responsibility, to tell the jurors that while you are owning up to what you did you think the Plaintiff deserves less money than they want. In this case, the Plaintiff claimed to have a strong relationship with his sister but lived across the country with only periodic contact. We had to be very careful in how we drew attention to this given the potential to anger jurors by appearing insensitive. The Plaintiff claimed they spoke on the phone once a week, but the evidence showed they never texted or emailed, that they had only seen each other one time in-person over many years, and that he was unaware of many significant life developments and challenges the decedent was facing.
Given these challenges and that this was an admitted liability case, we wanted to acknowledge the Plaintiff’s loss and convey that the Defense was fully accountable for not understanding the severity of the decedent’s injury. Care was taken to avoid any combativeness or any negative insinuations about the Plaintiff himself, the decedent, or even the fact that he was asking for a significant amount of money. Despite the Plaintiff’s attorney trying to bait us into attacking him, we remained relatively neutral and gave jurors specific tools to help them perform the difficult task of deciding non-economic damages. We also constantly reminded jurors about the long list of damages they were not allowed to consider, both in opening and closing, to make it as clear as possible what they could and could not compensate for. For this, we created a list of fourteen different items that they were not allowed to consider because they would be outside of the evidentiary claims.
For the decedent’s survival claim on pain and suffering, the evidence showed that she did not experience any significant pain before falling into a coma – she verbally denied falling, hitting her head, or being in pain, and a physical examination shortly after the incident revealed no injuries. Expert testimony was given detailing the subdural hematoma and how it unfortunately killed her, and jurors were reminded that there was a five-hour window at most for which any damages should be awarded if they even believed she experienced pain.
Instead of contesting the Plaintiff’s $45 million anchor directly, we formulated a strategy by which we empowered the jurors to evaluate the actual evidence in the case to determine the strength of the relationship between the decedent and her half-brother, and the value of the loss of that relationship. We encouraged the jurors to look at a full timeline of the history of their relationship, including all known physical contact, the distance they lived apart from each other at various points in their relationship, and highlighted other relationships that both the Plaintiff and the decedent were forming with other people. Rather than trying to openly diminish the relationship the Plaintiff claimed they had, we suggested that jurors evaluate the frequency of contact and consider how their closeness may have naturally diminished as they grew older and began living their own lives away from each other. As evidence, we encouraged jurors to look for “relationship markers” for measuring their closeness, such as how much they had shared with each other about their problems and their successes.
In jury selection, we focused on locating and striking jurors who had strong beliefs about the following:
1) the idea that very close relationships did not require maintenance, physical contact, or regular communication;
2) general anger and distrust towards medical professionals and institutions; and
3) jurors who seemed unwilling or unable to make an evaluation and judgement about the closeness of a stranger’s relationship. During voir dire, we managed to get multiple cause challenges.
At the end of the trial, these strategies proved to be effective. The jury in this case awarded no damages for the survival claim on pain and suffering. They were unable to reach a verdict on the loss of consortium claim, splitting 9-3, with nine jurors all agreeing to a number below $1 million dollars and the three holdouts wanting a figure between $5 – $10 million.
Overall, we learned the importance of teaching jurors to use an evidence-based approach to award damages while still expressing empathy and accountability. By giving jurors key evidentiary markers, we were able to guide their decision-making process to a favorable outcome.
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