Lawyers Shop for High-Verdict Juries

The plaintiff claimed she suffered a torn ligament in her shoulder when a window fell on her while she was leaning out of it.

"Doctor, when you saw the plaintiff in the emergency room, did her shoulder have a full range of motion?" the defendant's lawyer asked.

"Yes, she did," the doctor said.

"Doctor, is it possible to exhibit a complete range of motion if a ligament in your shoulder is torn?" asked the lawyer.

"No, it's not possible." responded the doctor.

"So you conclude that the plaintiff's shoulder ligament could not have been torn before you saw her in the emergency room, is that right?"

"That's right," the doctor said. "She could not have torn her shoulder ligament before she was seen by me in the emergency room."

As good as it can get for a defense lawyer, right? He'd gained an admission from the plaintiff's own doctor that the only objective injury the plaintiff complained of was sustained sometime after the accident she was trying to hook his client for.

Half an hour later, the jury came back with a verdict for $1million. Impossible, you say? Not in the Bronx, which redistributes wealth like no other jurisdiction in the country. This is the venue that, last year, awarded $9.5 million to the family of a woman who died in a car accident while restrained in a safety belt that came as standard equipment in the car. The manufacturer of the car was ordered to pay that amount though the safety belt met all federal safety standards.

The borough's judges understand the value of filing suit in the Bronx, too. In 1991, a judge filed suit in the Bronx after claiming to have been injured after driving through a pothole in Manhattan. A Bronx jury awarded him $1.7 million.

Bronx County, N.Y., Cook County, Ill., and several jurisdictions near the southern Mississippi River were once the only jurisdictions that consistently boasted high — some would say excessive — jury verdicts. Now they seem to appear regularly all over the country, and on the unlikeliest of facts.

In a recent case in Sioux Falls, S.D., trial lawyer was able to convince a jury that a man, who used methamphetamine and killed himself in a car accident and nearly killed his wife, was entitled to $268.6 million from the drug dealer who sold him the drugs. That figure is understandable if you believe that the jury was trying to punish the drug dealing defendant rather than compensate the plaintiff who killed himself.

The same assumption could be made about the case of Richard Boeken, who was awarded $3 billion in a tobacco case in Los Angeles last year 3 even though he had testified that he did not even become aware of cigarette warning labels until the mid-1990s. Yes, three billion dollars.

But that's not what juries are supposed to be doing. A New York City case reported last month shows conclusively that juries are increasingly unable to understand the basics of tort law. Here are the facts:

The plaintiff was a 36 year-old wife and mother suffering from post partum depression. She entered the subway station at 34th Street and laid down on the tracks. A person on a nearby train saw her and dialed 911. The Transit Authority informed its trains that a person was on the tracks at 34th Street and told drivers to slow their trains to 10 miles an hour.

The driver entering the 34th Street station at that moment had slowed his train to between 10 and 15 miles an hour when he struck the plaintiff. The plaintiff lived and was awarded $14.1 million. An appellate court reduced the award to $9.9 million after considering the plaintiff's own negligence, pegged at 30 percent. That means that somehow, the Transit Authority was 70 percent at fault for injuring someone who, by most accounts, was trying to kill herself in the darkness of a subway tunnel.

Trial lawyers are adept at forum shopping — getting their cases into the courts most likely to render blockbuster verdicts. They capitalize on a locality's unwillingness to treat both parties, the plaintiff and defendant, fairly. It's difficult to imagine what the driver of the subway train could have done differently, or what the manufacturer of a car is required to do if not make cars that conform to federal safety standards.

"The ironic thing is that with some of these cases, the next county over would render a defense verdict," says Mike Mahon, a defense lawyer with the firm of Harms, Mahon, Dellajacono & Finneran. "Around New York City, that can be a matter of the point on a bridge where an auto accident happens, for instance."

Juries are just as much to blame as lawyers for insane verdicts, because they create the incentives for forum shopping. Until the laws that govern venue assignment are changed, trial lawyers can be expected — and may have a duty — to do everything they can to get their client's cases into the courts that will render the absolute highest verdict.

Matt Hayes began practicing immigration law shortly after graduating from Pace University School of Law in 1994. He founded his own New York City firm in 1997, specializing in immigration law and representing new immigrants in civil and criminal matters. He recently left the practice for the "more normal life" of insurance defense. He lives in Bergen County, N.J.

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