In the last few years, headlines across the country have focused attention on large jury verdicts. The impact of such large verdicts is starting to be felt around the country and if unchecked could lead to the abolition of the jury trial system, especially in the torts arena. Recent verdicts from a medical malpractice survey conducted around the nation between 2012 and 2019 include:
Additionally, in Georgia we have seen a significant increase in verdicts over $10,000,000.
✚ Just this year, juries awarded $280 million to a plaintiff in a trucking accident and another $125 million verdict was awarded for the death of a disabled man who suffocated in a hotel room, both of which were in Muskogee County.
✚ In 2018, a jury awarded $15 million to the estate of a deceased patient and surviving spouse who brought a medical malpractice and wrongful death action against an anesthesiologist/pain management specialist, surgery center and pain specialists group. The allegation was that the patient suffered catastrophic brain damage from oxygen deprivation while undergoing procedure to relieve back pain.
✚ In 2018, a jury awarded $31 million in a case that involved the botched circumcision of a newborn at 18 days old.
✚ In 2018, a Clayton County rape victim was awarded $1 billion.
✚ In 2017, a jury awarded $45.8 million to a plaintiff that claimed she suffered a catastrophic brain injury four days after giving birth, and suffered devastating brain damage.
Many reasons are postulated for this trend, including the prevalence of high salaries in the sports and entertainment industry, lower salaries for corporate and entrepreneurs, social media influence, and celebrity lifestyles. From a legal perspective, plaintiff’s presented life care plans inflate damages, and there is inadequate judicial control over evidentiary rules during trial.
Regardless of the reason for these inflated numbers, the psychological effects are resulting in jury trials being elected for resolution in less than 3 percent of cases. This stems from a fear that defendants will be hit with large verdicts, or smaller— but still out of proportion— verdicts that inflate the real value of the case. Too often trials are avoided in otherwise defensible cases.
In addition, these high verdict cases increase the value of the settlement for other cases. Cases of merit settle for a higher number than justified when it is an “avoid trial at all costs” attitude. Even defensible cases are settled to prevent the risk of trial verdicts.
The trend will inevitably result in greater frequency of cases. As plaintiff attorneys learn that even meritless cases will have some value if there is a scintilla of risk, they will file more and more claims. Just look at the level of TV and billboard advertisements to see the feeding frenzy. As Jimmy Buffet said, “Fins to the left, Fins to the right.”
More space would be needed to do a detailed analysis and we are happy to discuss further. However, we need to start thinking of solutions before the system collapses.
The solution will have to be a comprehensive approach. Legislative efforts should be mandated at state and federal levels to limit exaggerated verdicts. This has to be real, sustainable reform. There are many model legislative issues that have proven to work and continue to be part of a wide range effort to return rationality to verdicts.
In addition, the legal profession— both lawyers and the judiciary— have to live up to the reality of values that ethics and common wisdom demand. Unchecked greed and desire of large fees lead attorneys to ask for a “billion” dollars in a single person wrongful death case.“Consultants” are telling plaintiff attorneys to ask for any large amount and that the jury will not hold it against them and will tend to inflate the verdict toward the larger number. Defense attorneys need to defend damages at the outset of the case and identify the right areas where value will be challenged.
Judges, who are elected through campaigns largely funded by plaintiff attorneys, must follow the rule of law and not be influenced by a populist philosophy prejudice against business or professional defendants. It is imperative these judges act as gatekeepers to end frivolous or tenuous claims.
A combination of legislative safeguards and a commitment of professionals to “do the right thing” based on law, and not money or political philosophy, will be required to save jury trials.
John E. Hall Jr. is founding partner and Sheila Kazemian is an associate attorney at Hall Booth Smith in Atlanta.