Personal Injury Verdicts

November 10, 2009

Personal Injury Statistics

While not as fun as, say, baseball statistics in the pre-steroids era, I really enjoy looking at statistics on personal injury lawsuits. The Department of Justice just released a new report on personal injury lawsuit statistics (which I found via TortsProfBlog). The data, as always with this stuff, is older – 2005. But it is still interesting. Here is a sampling:

Personal injury lawsuits accounted for about 60% of the estimated 26,948 tort, contract, and real property cases. The big venues are trying fewer cases. The number of personal injury lawsuits conducted by state courts in our 75 most populated counties declined approximately a third from 10,278 trials in 1996 to 7,038 trials in 2005.
Verdicts are down a bit, but not much is changing. The median damage awards garnered by plaintiffs in personal injury lawsuits declined from $38,000 in 1996 to $31,000 in 2005. Personal injury plaintiffs prevailed from 1996 to 2005 consistently about half of the time. The percentage of plaintiffs prevailing in automobile accident cases increased a bit from 58% in 1996 to 61% in 2005, but medical malpractice lawsuits became less successful: medical malpractice plaintiffs won in 19% of malpractice lawsuits in 2005 and 23% in 1996.
Nearly 60% of tort trials were auto accident lawsuits. Wow.
Approximately 15% of tort trials were medical malpractice lawsuits. It takes six days to try the average malpractice lawsuit.
Approximately 5% of tort trials were product liability lawsuits. Of the product liability lawsuits that went to trial, plaintiffs prevailed in about 40%.
An amazing 25% of product liability lawsuits are asbestos claims or other toxic tort lawsuits.
Judges found for plaintiffs in 56% of tort trials, while juries ruled in favor of plaintiffs in 51% of tort trials.
Plaintiffs prevailed in less than a quarter of lawsuits involving medical malpractice, non-asbestos (other) product liability, and false arrest or imprisonment trials.
During 2005, plaintiff winners in tort trials in the national sample were awarded an estimated
$3.6 billion in compensatory and punitive damages (not shown in a table). The overall median final award of $24,000 in jury trials and $21,000 in bench trials did not differ statistically.

October 2, 2009

Medical Malpractice Lawsuits and Malpractice Premiums

by Ronald V. Miller, Jr.

In response to a call from one doctor for medical malpractice reform in Montana, Thomas C. Bulma, a Missoula lawyer, points out the following facts:

Only one Montana dentist has been the subject of a lawsuit in Montana in the past 10 years. The dentist prevailed.
Only one podiatrist was sued. The podiatrist prevailed.

June 4, 2009

Personal Injury Jury Verdicts and the Recession

by Ronald V. Miller, Jr.

Michigan Lawyers Weekly published an article titled “Populist juries side with plaintiffs.” (No web link available.)

This title got my attention because I have been speculating about the impact our economic troubles are having on jury verdicts. The thesis of the article appears to be that juries are more likely to side with plaintiffs in this economy, but are less likely to give large damage verdicts. Although, it quotes one lawyer saying he got a larger verdict than he asked for, which he attributed to the economy.

Unfortunately, the article is just anecdotes from plaintiffs’ personal injury lawyers who have recently received good verdicts. This is not exactly the target audience for a fair look at the issue. The lack of hard evidence is not the fault of Michigan Lawyers Weekly. The economy turned in October with the meltdown in the financial markets, and there is not a lot of data since then that has been collected and analyzed.

April 13, 2009

Value of Wrongful Death Cases in Maryland Where Victim Is 65 or Older

by Ronald V. Miller, Jr.

Lawyers handling wrongful death cases encounter an awful argument from defense lawyers in cases where the victim is 65 years-old and older: you have to discount the value of your claim because the victim was old, anyway. The argument is so callous no lawyer would directly make this argument to a jury, especially in a jurisdiction like Maryland where there is a meaningful cap on wrongful death and survival action damages.

The “victim was old anyway” argument is offensive and cold… but not entirely untrue when you look at jury verdicts. There is some measure of truth to it. Once you get past how awful it sounds, the differences make sense. The money damages awarded in a wrongful death claim with a young victim having 70 more years of expected life should be higher than with an older victim having only 20 more years of expected life because the victim’s family will be without them longer and the victim missed out on a lot more life.

The reason the argument is so offensive is not the underlying premise—older victims get less—but the “How big was the loss, really?” way in which they pitch it. Juries still place actual values on these losses. According to Metro Verdicts Monthly, juries have over the last 22 years awarded an average verdict in Maryland wrongful death cases of $1,337,824 involving victims 65 and older. Washington, D.C.’s average is slightly higher, $1,443,818. Incredibly, and this really underscores jurisdictional differences, Virginia’s average verdict in wrongful death cases involving victims 65 and over is an abysmal $685,535, less than half that of the District of Columbia. Continue reading

November 11, 2008

Wrongful Death Verdicts for Minor Children: A Large Sex Based Difference in Verdicts

by Ronald V. Miller, Jr.

In wrongful death cases, the size of jury verdicts has always tilted in favor of men, which is why many argued that caps on non-economic damages are sexually discriminatory.

In a recent study, Jury Verdict Research offers a different conclusion when comparing compensation in wrongful death claims between minor females and minor males. The median wrongful death of minor females is $1,912,349 but the median award for the wrongful death of minor males is $1,500,000. This gap increases when looking at average wrongful death verdicts. Minor females average $8,648,036 in wrongful death cases compared to an average of $3,173,360 for males.

I can’t explain this data or offer a reason for it.

October 28, 2008

Larger Verdict Because of Christmas?

by Ronald V. Miller, Jr.

October’s Chicago Lawyer contains excerpts from an interview with John L. Kirkton, the editor of the Jury Verdict Reporter for the last 17 years.

One great myth debunked by Mr. Kirkton is the theory that jurors give more around Christmas. Lawyers are always looking to schedule trials around Christmas and defense lawyers always try to avoid civil jury trials in December because they think the spirit of giving leads to more sympathetic jurors. The theory makes some anecdotal sense. Everyone seems to have just a little extra love in their hearts during the holidays.

Jury Verdict Reporter looked at reported December trials over the last four years in Cook County, Illinois, and found that the plaintiff won between 47 and 50 percent of the time. For December trials, the plaintiffs’ success rate dropped to 44%.

September 8, 2008

Average Wrongful Death Verdicts for Females: Age Is More Than a Number

by Ronald V. Miller, Jr.

Interesting data from Jury Verdict Research on the median and average values of wrongful death cases where the decedent is female. The overall average compensatory award for wrongful death of an adult female over the last eight years in the United States is $2,990,032 ($1,102,976 is the median).

Age is a big variable when looking at median and average female wrongful death values. The average wrongful death verdict for a female between 18 and 24 is 2,990,032 ($1,102,976 median). For females between 30 and 39, women who are far more likely to have left behind children, the median wrongful death verdict escalates to $5,605,127 ($2,500,000 median). For women over 80, the average wrongful death verdict plummets to $1,314,241 (322,920 median).

I always find it maddening when insurance companies discount the value of human life in wrongful death cases because of the age of the decedent. If you are eighty years old and you are killed, those last 10 years of seeing your kids as adults, your grandchildren coming of age and everything else that comes with it are valuable years. But these numbers, regrettably, show that there is some logic to their thinking for how juries value wrongful death cases.

August 8, 2008

Settlement of Personal Injury Cases: The New York Times Article

by Ronald V. Miller, Jr.

There is an article in the New York Times today that concludes that it is best to settle most accident, malpractice, and breach of contract claims based on a recent study.

The basis for the conclusion is a study suggesting that defendants made the wrong decision by proceeding to trial, based on the offer and the outcome, in 24 percent of cases, and plaintiffs were wrong in 61 percent of cases.

Setting aside that these numbers do not even resemble the numbers of our lawyers – and probably 90% of the personal injury lawyers reading this – these numbers are hardly persuasive in reaching that conclusion. The reason is simple: if you bet on a horse that is a 50-1 shot and the horse has a 10% chance of winning the race; you will lose more often than you win but you are still better off making the bet (i.e., trying the case) than you are not making the bet (i.e. setting the case).

July 29, 2008

Loss of Chance in Medical Malpractice Cases: What Massachusetts Has Done and What Maryland Should Do

by Ronald V. Miller, Jr.

While I was on vacation, I promised more commentary on Matsuyama v. Birnbaum, a landmark medical malpractice opinion on loss of chance from the Massachusetts Supreme Judicial Court.

In Matsuyama, the 42-year-old Plaintiff’s decedent, Mr. Matsuyama, saw the Defendant doctor, a board-certified internist, and his primary care doctor, for a physical in July 1995. Mr. Matsuyama’s medical records from that visit showed disclosure of complaints of gastric distress for the last seven years and that Mr. Matsuyama’s prior doctor had noted that he might need additional tests to evaluate his symptoms.

The Defendant doctor testified that Mr. Matsuyama complained of “heartburn and difficulty breathing associated with eating and lifting.” The Defendant also knows Mr. Matsuyama was a smoker at high risk for developing gastric cancer. Without further testing, the doctor diagnosed Mr. Matsuyama with gastrointestinal reflux disease.

Plaintiff’s expert testified that at this point the doctor committed medical malpractice by failing to order the right tests, and, over a year later with the same symptoms and facts available to him, he continued his diagnosis despite complaints that Mr. Matsuyama’s heartburn was worse and that he had gastric pain after eating. A year later, Mr. Matsuyama again visited his doctor and asked about moles that been developing. The doctor diagnosed “benign seborrhea keratosis.”

I’m getting deeper into the medical facts here than I would like, but you get the point. Mr. Matsuyama went back to the doctor with more symptoms consistent with gastric cancer, and his doctor failed to test more thoroughly for cancer. But in May 1999, when his symptoms went through the roof, the doctor ordered a gastrointestinal series and an abdominal ultrasound, which quickly revealed a two-centimeter mass in Matsuyama’s stomach. He died in October 2000, leaving behind a wife and child.

After a six-day trial in Norfolk County Superior Court, the jury found the doctor negligent and found that the doctor’s medical malpractice was a “substantial contributing factor” to Mr. Matsuyama’s death and awarded Matsuyama’s estate $160,000 for pain and suffering caused by the negligence. Then, in response to a special jury question, the jury awarded damages for “loss of chance.” They calculated the damages to be $875,000 as “full” wrongful death damages and found that Matsuyama was suffering from stage-2 adenocarcinoma at the time of doctor’s initial negligence and had a 37.5% chance of survival at that time. The Norfolk jury awarded the plaintiff “final” loss of chance damages of $328,125 ($875,000 multiplied by .375) for $488,125. Continue reading

June 16, 2008

Average Verdict Value In Head-on Collisions

by Ronald V. Miller, Jr.

Jury Verdict Research provides median award data and verdict probabilities in head-on auto, truck and motorcycle accident cases nationally. Plaintiffs prevail and recover damages in 64% of these cases. The median award in these head-on collision personal injury cases is only $31,875.00. This number reflects the fact that 24% of the head-on collision claims in the study were for “back strains” where the average award is only $9,312.00. These are probably not the injuries we think of when we think of a head-on collision.

But here is a genuine shocker: the median head injury verdict in head-on collision accidents is only $25,000.00. If you have a head injury, typically you have a serious accident. So this data is not what I think most attorneys would suspect. If I had to guess at the head-on collision national median, I would have predicted the number would be at least six figures. I would suspect that the average – as opposed to the median – exceeds $200,000 but I could not find any data to support my hypothesis.

Why Settlement Numbers Are Likely Much Higher