A dry year for big verdicts 

Posted: 1:00 am Mon, December 7, 2009
By Michelle Lore

With less than a month left in the year, it’s fairly apparent that 2009 won’t go down as a banner year for splashy multi-million-dollar personal injury verdicts in Minnesota.

Surprisingly, plaintiffs’ attorneys didn’t seem to be overly concerned about the dearth of eye-popping awards. Instead, they expressed a general feeling that the down economy has lead to jurors’ being a little more generous in many of the smaller cases that make up the crux of their practices.

“I think, if anything, poor economic times cause juries to be more generous in good cases,” said Minneapolis med-mal attorney Terry Wade. “I have the sense that [insurance] carriers know that in good cases … juries are actually quite progressive at the moment.”

Minneapolis personal injury attorney Peter Riley agreed. “Historically … hard economic times have actually resulted in better verdicts,” he said. That may be because jurors can identify with people who’ve lost earnings or because they are just more empathetic when they see others having difficulties, he opined.

St. Louis Park attorney Howard Kaplan said that juries are “more concerned with wage loss and future medical expenses in bad economic times than they would be in others. They seem to handle dealing with medical expenses better than the concept of pain and suffering.”

Appleton attorney Brian Wojtalewicz said that for several years he was worried about how poorly plaintiffs were being treated by juries but things appear to be improving.

“Over the last year, I’ve been getting more encouraged,” he said.

Wojtalewicz, who has had several successful jury verdicts this year, recently obtained a $155,000 award in Moorhead in a personal injury case in which the defendant had offered only $25,000.

Wade warned, however, that despite jurors’ generosity in good cases in bad times, they are tough in the more marginal cases and plaintiffs’ attorneys who pursue them “are going to have their bell rung.”

Some attorneys confront the issue of the down economy head on when picking jurors.

Minneapolis plaintiffs’ lawyer John Dornik said that he comes right out and asks potential jurors during voir dire whether the state of the economy makes it more difficult for them to award substantial damages to an injured plaintiff.

“Most jurors are still willing to look me in the eye and commit to me that they’ll be fair and award damages that are consistent with the facts, and that they won’t take into account circumstances related to the economy,” he said.

Outstate verdicts

While big personal injury awards were few and far between this year, one multimillion dollar verdict did come down in a case involving two men killed in a 2003 plane crash. In June, Hibbing attorney Edward Matonich and Minneapolis lawyer Philip Sieff secured a $16.4 million jury verdict in Itasca County on behalf of the families of the two men. (See “Aviation suits remain unchartered territory for many,” in the June 15, 2009, issue of Minnesota Lawyer.)

Six weeks ago, Wade obtained a $1.25 million verdict in St. Louis County for a family whose 2-year-old son died allegedly as a result of a doctor’s failure to diagnose the child’s gangrenous appendix.

Minneapolis personal injury attorney John Sheehy said that while several potentially big cases he is handling where originally scheduled to go to trial this year, they ended up being pushed into 2010. One case was supposed to be tried this month in Rice County, but the judge retired and no other judge was able to step in, he explained.

Sheehy opined that the dearth in large verdicts may be due in part to the courts’ budget issues.

“Some judicial districts have so little money that could be part of the problem,” he said. “The judge [in the Rice County matter] would have stayed on the case if they’d had money to pay him as a retired judge. But they didn’t have the funding.”

Still settling

One legal trend watcher said that while the year produced few big personal injury verdicts, there appeared to be an increase in the number of cases going to trial.

Kaplan blamed the phenomenon, at least in part, on the economy. In bad economic times, insurance companies are more likely to draw the line and try cases they don’t think are worth as much as plaintiffs think they are worth, he said. There are also more plaintiffs’ attorneys out there now who are willing to try cases, he added.

Practitioners said that most of the really good cases still settle.

In fact, Kaplan believes that’s the reason there have not been many large verdicts this year. “You don’t see them very often because they get resolved,” he said.

Attorneys reported that many high-value cases did, in fact, come to a resolution this past year.

“Some pretty good cases are settling,” said Wade.

Kaplan, who frequently serves as a mediator in personal injury cases, said that he’s been involved with several settlements in excess of $1 million, but they are confidential and therefore aren’t publicized.

While neither Sheehy nor Riley tried any cases this year, both said that their firms had several good settlements.

“I have not seen any economic affect on the offers,” said Riley.

Sheehy said that “at the beginning of the year we didn’t know how all this economic stuff would affect the insurance companies. … But it didn’t seem to affect anything in terms of the normal settlement of cases.”

Dornik also said that he was initially worried that the down economy would make it difficult for insurance companies to pay out on claims, but that fear hasn’t materialized. In fact, he’s had at least two seven-figure settlements in the past year.

“They were both very good cases but I was concerned that maybe the companies would say they can’t or won’t pay in this economy,” he said.