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By: Andrew Treese
The time may have come to ask whether we can continue to cling to the notion – it if was ever true – that evaluation of verdict range may be based upon some integral multiplier of special damages. More and more, seven and eight figure verdicts are being awarded in personal injury cases. Several factors appear to be driving this reality. The first is the plaintiff’s bar: the best attorneys have become adept at utilizing the “reptile” theory, playing to a juror’s fears that they or a loved one might someday be in the same position as plaintiff (whether they actually use the “reptile” arguments or not). Jurors, too, are a factor. They often feel their role is to “send a message” to corporate defendants and therefore funnel their rage or sympathy into an award of compensatory damages. The problem is that in many cases, that is not legally proper. In many states, a jury may “send a message” to punish a defendant or deter future misconduct – but only in an award for punitive damages, not compensatory damages. Some plaintiff’s attorneys are foregoing punitive damages claims altogether: they want the jury angry, but they want the anger reflected in the compensatory award to avoid state law caps on punitive damages.
Two recent verdicts illustrate the point. Three weeks ago, a Fulton County jury awarded a $20 million verdict in a wrongful death claim arising from claims of negligent security against an apartment complex. The verdict was reduced to “only” $10 million because the jury apportioned 50% of fault to the shooter. Two weeks ago, a Fulton County jury returned a verdict of nearly $31 million in an auto wreck case including awards of $391,000 in medical bills, slightly under $94,000 in attorneys’ fees, and $30 million in general damages (i.e. pain and suffering). Plaintiff’s counsel told a local media outlet that he had spoken with the jury and they reported reaching their decision in 10 minutes – before spending six additional hours deliberating whether or not they should award punitive damages. The defense plans to seek post-judgment relief.
At Freeman Mathis & Gary, we work together with our clients to identify potential “large verdict” cases as early as possible. Our discovery efforts are focused equally on liability, causation and damages, but tailored specifically to the case. It is important to remember, however, that there is no “silver bullet” to predicting large cases and even a “non-death” injury case may have potential for a runaway verdict.