Those who have been injured in an accident suffer in a number of ways. Most immediately, they sense pain and a worsening of their physical health. They are forced to seek expensive medical treatment for which they typically must bear at least some of the cost. At the same time that they incur these additional expenses, the injury may prevent them from working or working as much. If the accident involved a car, they may lose their only form of transportation. The trauma as well as resulting pain and financial hardship often lead to emotional problems, such as anxiety, stress and depression, and an unraveling of inter-personal relationships. It is no exaggeration to say that in many cases, a serious personal injury can completely change a person’s life.
When >personal injury plaintiffs meet with an attorney for the first time, it is often on the heels of a series of frustrating and humiliating events. They have shuffled from medical provider to medical provider without a cure. They have attempted in vain to get the insurance company to pay the medical bills. They have lost time at work and are feeling financially strapped. Relationships are strained. They are frustrated. They feel that nobody understands what they are going through or is willing to help. What they really want is just to have someone listen to them.
That is the purpose of the intake meeting with a new client. Listen. Lawyers too often feel that they need to do all of the talking, to come up with answers. But a good attorney-client relationship begins with listening.
Once you have listened completely to the client’s story, it is time to discuss what you can and what you cannot do to help—to explain what can be accomplished through the civil justice process. The only thing it can promise is some financial compensation.
What we want to say as attorneys is that the promise of the civil justice system is to make an injured client whole for the injuries suffered. But what does that mean? It is cliché that the civil justice process cannot undo the injuries caused by the accident. So what does it mean to make an injured person whole? What aspects of the legal system help ensure that the person is made whole? How well does our system do at fulfilling this promise?
In order not to risk overpromising and underdelivering, I will tell you right now that I am not going to be able to answer these questions. This Article will probably raise more questions than it provides answers. The point is really to raise the issues and hopefully encourage discussion on these topics.
II) The History and Purpose of Tort Damages
a) Common Law Origins
Every now and then I think it is helpful to take a step back and think about why we are doing what we are doing. Why does tort law exist in the first place? How did we decide what sorts of damages would be available? So let’s just take a few minutes to place our modern system in historical context.
As with most of America’s legal system, modern tort law finds its roots in the English common law. As John Locke wrote in the Second Treatise of Government: “he who hath received any damage has . . . a Right to seek Reparation from him that has done it.” That is, it is natural law that a person has a remedy for a private wrong done to him by another.
When people consented to be governed, they did so on the implicit condition that the government would enforce legal rules that preserved the natural law right to redress of private wrongs. Blackstone wrote that it was the “settled and invariable principle in the laws of England, that every right when with-held must have a remedy, and every injury it’s proper redress.”
This is the history of what has become known as tort law. In its earliest forms at common law, it was not primarily motivated by compensating the injured party, but by providing retributive justice to the injured party comparable to self-help vengeance in the natural state. Stated differently, the origins of modern tort lie not in the modern actuarial-type concerns of an insurance compensation regime, but in more fundamental notions of social justice—of righting wrongs. In this sense, the law helped to protect the vulnerable from the powerful, and preserve social order, something that disproportionately benefited the powerful who had the most to gain from maintaining a lawful and ordered society.
b) Tort Damages in America
The idea of tort law as a vehicle for achieving social justice expanded in the American system, beginning in the late nineteenth and early twentieth centuries when the old writ system was abandoned and “torts” was first recognized as an independent field of law.2 Wigmore described torts as based upon universal, “non-refusable duties,” which created correlative “general rights.” 3 Oliver Wendell Homes described “torts” as the law concerned with universal private duties “of all to all.” 4
In the Introduction to the first edition of their influential treatise on tort law, Harper and James wrote
The little affairs of the citizen, taken singly, are unimportant to any but the persons involved. In the aggregate, however, they are of immense importance to the community because the law that regulates them affects every member of society. In the aggregate, therefore, the principles of the common law which govern the rights of the parties reflect accurately the fundamental spirit of the times. They disclose the kind of society men want—the rules by which they are content to live. 5
As the field of torts became more prominent in America, the rationale for tort damages evolved from a focus on retribution for the wrong to a heavier focus on compensation to the victim. 6 With the industrial revolution and the popularization of the automobile, most accidents were between strangers. As insurance became more widely available, private remedies were more likely to achieve compensation. Trial lawyers and contingent fees provided increased access to justice.
The increased focus on victim compensation did not diminish the social justice purpose of tort damages. Rather, it reflected the heightened emphasis on individualism as society became more industrialized and impersonal and less controlled by organized religion.
c) Comparative View
Scholars often compare the American tort system with its European counterparts. That is a large topic and one for another occasion. However there are a few issues that are worth thinking about.
Much of this comparative analysis looks at the methods for arriving at damages awards. The American system with which we are familiar essentially leaves the decision to discretion of the jury, with very little guidance or judicial oversight.
By contrast, in most European systems, the trier of fact (a judge) is typically given many more tools to value damages. These tools include everything from damages schedules that assign values to various types of injuries, similar to our workers’ compensation system, to historical data about what other plaintiffs have received in the past for similar injuries. As a result, it is claimed that European tort damages awards are much more uniform and predictable than those in this country.
That may be true, but question then becomes how much value should a system place upon uniformity and predictability.
First, there is to some degree a tradeoff between predictability and arbitrariness of results. Because non-pecuniary damages are not inherently subject to precise quantification, any attempt to assign precise values to categories of injuries must be, in some sense, arbitrary. We have seen the problems with one-size-fits all justice in the context of the Federal sentencing guidelines. One advantage of our general reasonableness standard is that it is not arbitrary: the same standard applies to all plaintiffs in all cases.
Second, compared to European countries, private industry in the United States is not highly regulated by the government. To some degree, our system relies more upon the tort system of private remedies to regulate industry, such as the pharmaceutical industry. Because the regulators who make the laws are often tied to the industry, the public can have more confidence that regulation will occur through the tort system than through government regulators.
Finally, even with respect purely private tort actions, such as car accidents, tort law occupies a different role in American society because America lacks the comprehensive social safety net available in most European countries. Given the weak safety net, an American badly injured by a single accident risks financial ruin through a mountain of medical bills and inability to work.
I am not arguing that the American system is perfect. There are a number of proposed reforms that might make sense. But whatever changes are made to the system must maintain our tort system as a centerpiece of achieving social justice. Tort reform efforts that seek to impose arbitrary limitations on damages or reduced legal fees are thinly disguised efforts to weaken the tort system and reduce the political influence of lawyers who represent plaintiffs—a largely poor, disorganized and under-represented segment of society. Yet the influence of tort lawyers on behalf of the interests of their clients remains one of the few real checks on power in this society.
III) Maine Tort Law in Practice
a) Overview of Maine Jury Verdict
What do Maine juries award tort plaintiffs? How well does our system do at fulfilling the promise of making the injured person whole?
In order to better address those questions, I analyzed the results of plaintiff’s tort verdicts in Maine over roughly the past seven years, from Oct. 1998 through Jan. 2006. I did this by going back through all of the verdicts published in the Maine Verdicts newsletter and compiling the data into a spreadsheet. The data I collected included the category of case—that is, motor vehicle accident, premises liability, medical malpractice—the amount of the claimed medical bills and total special damages in each case, the county in which the trial was held, the amount of the pre-trial offer and the attorney of record for the plaintiff.
Before I present the findings, a few caveats are in order. As you know, the Maine Jury Verdicts report compiled by the MTLA relies upon self reporting. So if the lawyers did not report the verdict, it is not part of this analysis. My suspicion, however, is most verdicts—particularly substantial verdicts—are reported.
Second, I want to apologize in advance to those who do defence work or practice in an area outside of tort law. Because I am focusing on tort damages, the analysis looks only at verdicts in cases that plaintiffs won and recovered money.
In that vein, my ex-post analysis of plaintiffs’ verdicts is different than an ex-ante case valuation model. Again, I am focusing on what juries awarded in cases that plaintiffs won, which does not factor probabilities of loss on liability issues. I did not look at the won-loss ratios, and I think we must assume that a significant number of cases result in defence verdicts in which plaintiffs recover nothing.
Finally, the analysis looks at verdicts, not settlements. As we know, verdicts reflect only the top of the pyramid in damages recovery. However, they are important, because all settlement occur in their shadow.
i) Verdicts By Legal Category
From October 1998 through January 2006, there were 222 tort verdicts reported in the Maine Jury Verdicts report in which Plaintiffs recovered damages. These included seventeen medical malpractice verdicts, thirty-three premises liability verdicts, 157 motor vehicle accident verdicts and fifteen other verdicts in cases involving products liability, intentional torts and other professional malpractice.
Over that time, the total aggregate recovered by plaintiffs was $45,811,080.
Although there were only one-third as many medical malpractice plaintiffs’ verdicts as premises liability verdicts, and approximately ten percent as many as motor vehicle accidents, medical malpractice verdicts accounted for nearly forty-six percent of the total damages awarded.
Of course, medical malpractice verdicts account for a large portion of the aggregate damages awarded, because medical malpractice verdicts tend to be much higher than those in other categories.
Looking at average verdict awards is not very helpful, because a single large verdict can skew the result substantially upward. It is more useful to compare median verdicts.
A comparison of median verdicts by category shows that the median medical malpractice verdict dwarfs the median verdicts in other categories. However, it is important to keep in mind that the number of medical malpractice verdicts in which plaintiffs recover money is small.
ii) Verdicts By County
As expected, there is some variation of Plaintiffs’ verdicts across the counties. Several of the less populated counties had only a few verdicts, not enough to provide any statistically significant information.
The results from the more populated counties are as follows:
· Verdicts 20
· High $600,000
· Median $36,250
· Verdicts 51
· High $7,485,000
· Median $37,243
· Verdicts 35
· High $1,407,680
· Median $13,000
· Verdicts 25
· High $1,140,825
· Median $21,000
· Verdicts 23
· High $1,662,748
· Median $33,712
· Verdicts 10
· High $2,100,000
· Median $274,324
· Verdicts 222
· High $7,485,000
· Median $27,811
There were only 10 reported jury verdicts in which tort plaintiffs were awarded damages in Federal Court. However, the median verdict in Federal court was significantly higher than State courts.
b) Pecuniary vs. Non-Pecuniary Damages
As discussed, much of the scholarly discussion on damages verdicts focuses on the differences between pecuniary and non-pecuniary damages.
Critics of the tort damages system seize upon this lack of specific guidance, and portray non-pecuniary as the uncontrollable Mr. Hyde to the rational Dr. Jekyl of non-pecuniary damages. This critique is overly simplistic, and as the analysis of Maine verdicts will show, largely unsupported by the empirical evidence.
i) Jury Standards for Non-Pecuniary Damages
Pecuniary damages are tangible losses that can be expressed in reasonably certain—if not precise—economic terms. 7 Pecuniary damages include past and future medical expenses, lost earnings and earning capacity.
Non-pecuniary damages are based upon the widely-accepted proposition that many of the qualities we value highest in life—health (including the absence of pain and suffering), happiness, reputation, independence autonomy and personal freedom—are diminished by a bodily or emotional injury, but not inherently quantifiable in dollars.8 To quote the drafters of the Second Restatement of Torts: “The sensations caused by harm to body or by pain or humiliation are not in any way analogous to a pecuniary loss, and a sum of money is not equivalent to a piece of mind.” 9
From the beginning, Maine law has been clear that the decision of how much to award for pain and suffering damages is almost entirely up to the discretion of the jury. One of the earliest reported statements on the subject comes from the 1914 case of Felker v. Bangor Railway. 10
In that case, a seventy-one-year-old married woman was injured after the carriage she was riding in overturned upon colliding with the defendant’s “electric car.” The Law Court described the plaintiff as being thrown violently to the ground between the railroad tracks, breaking two of her ribs and suffering from “nervous shock.” The Court noted that her treating doctor testified that she suffered from ongoing pain as a result of, what was, in the doctor’s expert opinion, “the horrible state of her nervous system.”
The jury awarded a whopping $1200 in damages ($25,000 – $50,000 in present dollars). The defendant appealed on the grounds that the verdict was excessive. After explaining that the woman was not entitled to recover for medical bills (which were legally her husband’s responsibility) or lost ability to do work around the house, because “under the marital relation, the labor in the house belonged to her husband,” the Court went on the address pain and suffering. The Court articulated the standard by which pain and suffering awards are reviewed:
There is no standard by which the damages for such injuries as are shown in this case can be measured. In the end the question must be left to the sound sense and good judgment of the jury, to award such damages as seem to them to be fairly compensatory. 11
Because the standard is essentially whatever a jury thinks is fair, a damages verdict is reversible on appeal only if the moving party can show that “the award is without rational explanation and, hence, is to be deemed a disregard by the jury of the evidence or the result of passion, bias, prejudice, accident, mistake or improper compromise.” 12 As a practical matter, it is almost always impossible to make such a showing, given that a jury is not required to provide an explanation for how it arrived at a damages award.
ii) Pecuniary vs. Non-Pecuniary Damages In Maine Jury Verdicts
Here is what I found with respect to pecuniary damages (medical bills and lost wages) and non-pecuniary damages:
Of the verdicts in which the jury awarded more than the medical specials, the medical specials accounted for an average of 37% of the total verdict. In other words, the average verdict is just under three times the medical specials.
Of the verdicts in which the jury awarded more than the total specials, the total specials accounted for on average 42% of the total amount of the verdict. This means that general pain and suffering damages account, on average, for about 58% of Maine verdicts. (This is consistent a variety of national studies which find that general damages typically account for roughly between 40% and 60% of jury verdicts.) 13
This analysis shows that medical bills and lost wages tend to be a fairly good predictor of the size of a verdict in many—but certainly not all—cases. This makes sense, because the amount of medical bills and lost wages are often—but not always—a good indicator of the severity of injury. Other studies have shown that the severity of the injury (measured on some type of standardized scale) is the single best predictor of damages verdicts.
It is important to keep in mind that although plaintiffs try to present pecuniary damages in precise monetary values, there may be significant dispute over the values claimed, particularly in substantial cases. In those situations, it is not unusual for pecuniary damages to be the subject of competing expert testimony—usually focused upon life care planning and future lost earnings.
Both plaintiffs and defense counsel should think carefully about how best to use pecuniary damages experts. The Law Court’s 1978 decision in Michaud v. Steckino 14 makes clear that proof of diminished earning capacity will normally not require the presentation of expert testimony, because so long as there as a sufficient factual foundation, the issue is usually within the common knowledge of the jury. In some situations, economics testimony may backfire if it causes confusion or the appearance of overreaching.
c) Lost Enjoyment of Life
Not all non-pecuniary damages are captured under the heading, “pain and suffering.” In addition to pain and suffering, the injured plaintiff may recover for “lost enjoyment of life,” or so-called “hedonic” damages. These damages reflect the fact that injuries may detract from the injured plaintiff’s ability to enjoy life’s pleasures beyond pain and suffering. An injury may interfere with a person’s ability to pursue her passions, dreams or other things that bring pleasure or fulfillment.
For instance, where a plaintiff is rendered comatose by the negligence of the defendant and lacks the consciousness to sense pain or physical suffering, the plaintiff nevertheless loses the capacity to enjoy life.15 This is an extreme example, but it illustrates the fact that the ability to take advantage of life’s opportunities involves more than just the absence of pain.
III) Punitive Damages
Attorney Rufus Brown’s impressive recent verdict in a defamation case aside, tort cases awarding punitive damages are almost unheard of in Maine. This is probably a function of the type of cases that are tried in Maine. Given the “malice” standard for punitive damages, such damages typically are not available except in intentional tort and product liability cases. However, of the 222 Maine verdicts surveyed only 7 involved intentional torts and 1 product liability.
IV) Does The Lawyer Matter?
Before concluding, I want to take up a final question that weighs on the mind of every lawyer who makes his or her living trying cases—does the lawyer matter to the outcome? Without any analysis, we all know the answer to that question—of course. In hundreds of tangible and intangible ways, each of us impacts upon the lives of our clients. Anyone here that truly believed that lawyers were interchangeable parts would have left the profession a long time ago.
The evidence supports our intuition. When it comes to trying plaintiffs’ tort cases to juries, the evidence suggests that having the right lawyer does matter.
From October 1998 to January 2006, 113 lawyers obtained tort verdicts in Maine, in which the plaintiff was awarded at least some damages. Forty four lawyers obtained two or more favorable plaintiffs’ verdicts.
Only twenty-three attorneys obtained three or more plaintiffs’ damages verdicts. The twenty-three lawyers who obtained three or more plaintiffs’ verdicts, collectively, were responsible for 109 of the 222 verdicts, or roughly 50% of all the plaintiffs’ tort verdicts obtained for more than a seven year period.
The impact of the few top plaintiffs’ attorneys is even more striking when considering the amounts recovered. The total of all the reported verdicts was 45,811,080. Of that, the highest ten verdicts accounted for fifty-five percent of the total and was obtained by only six attorneys. The highest 30 verdicts accounted for over eighty-percent of the total and reflected the efforts of nineteen attorneys. That means that for a period of more than seven years, eighty percent of the total money awarded to tort plaintiffs went to clients represented by only nineteen attorneys.
Verdicts Aggregate Award Percentage Attorneys Responsible
Highest 10 25,015,858 55% 6
Highest 20 32,879,377 72% 11
Highest 30 37,131,377 81% 19
The findings above suggest that in Maine, there is little reason to be concerned about irrationally high, run-away damages awards in tort cases. Rather, there is a question whether the current system adequately fulfills the promise of making the average (successful) tort plaintiff whole. This is an important question because, as Harper and James said, how we treat those who have been hurt and injured says a lot about the kind of society we want to be.
1. This Article is adapted from a presentation by the author at the annual meeting of the Maine Bar Association, July 1, 2006. The author would like to thank Matt Morris, a student at the University of Maine School of Law, for his assistance in researching and preparing this Article.
2. See Prosser Keeton, The Law of Torts Section 1 (5th Ed. 1984); see also Kendall v. Brown, 6 Cush. 292 (Mass. 1850).
3. See G. Edward White, The Intellectual Origins of Torts in America, in Tort Law in American History, (Kermit v. Hall, ed. 1987), citing T. Cooley, A Treatise on the Law of Torts (1880).
4. See id. (citing Holmes, The Theory of Torts, 7 Am. L. Rev. 652, 662 (1873)).
5. Harper, James and Gray, The Law of Torts (1st ed. _____).
6. See Prosser Keeton, at § 1.
7. See Restatement (Second) of Torts ‘ 906 (1979).
8. See Restatement (Second) of Torts, Section 924 (cmt. b) (ANo rule can be stated profitably on the amount of damages recoverable for [bodily and emotional harms], other than that the amount is within the reasonable discretion of the jury or other trier of fact.@).
9. See Restatement (Second) of Torts ‘ 903 (1979).
10. See 91 A. 980 (Me. 1914).
11. Id. at 981.
12. Cope v. Sevigny, 289 A.2d 682, 684 (Me. 1972)
13. See Marshall S. Shapo, Tort Law and Culture, at 57 (Carolina Acad. Press 2003), citing Flannery v. United States, 297 S.E.2d 433, at 64 n. 23 (W. Va. 1982) (collecting sources).
14. See 390 A.2d 524 (Me. 1978).
15. See, e.g., Flannery v. United States, 297 S.E.2d 433 (W. Va. 1982).