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Images of burning and collapsing buildings and the teary accounts of loss from Sept. 11 have been engraved on the minds of Americans — including jurors. The terrorist attacks, area trial lawyers said, left jurors distracted in the two weeks following Sept. 11. Some attorneys reported a tightening of jury awards for injuries viewed as relatively minor, while others said jurors seemed more empathetic, possibly returning larger awards for seriously injured plaintiffs or wrongful death. While plaintiffs’ attorneys say jurors’ inattentiveness seems to have passed, they are divided on whether juries have returned to delivering verdicts in line with those before Sept. 11. The determining factor of a jury’s generosity appears to be the type of injury, attorneys said. Jury awards for injuries that are hard to prove or disprove, such as soft tissue or back problems, have been lower since the terrorist attacks, some attorneys said. But Media, Pa., solo practitioner Gregory G. Stagliano said that cases involving bad supervision, security or negligence that decreases longevity are likely to get a more sympathetic reaction if a juror ties the underlying issues to the causes of Sept. 11. Jurors’ sympathies are a moving target. While jurors appear to be conservative on some issues, they are generous on others, Stagliano said. “There is generally a greater empathy for suffering, because jurors have seen so many suffer in so many different ways,” Stagliano said. “But there is also a backlash to people who are not injured so badly, such as your garden-variety whiplash.” Stagliano had a personal injury case involving a wrist injury for which the plaintiff had had several surgeries. “I had fairly decent expectations, but I was disappointed with what the jury came back with,” Stagliano said. “I didn’t feel I was making contact with them even though there was a cross-section in terms of age, race, sex and ethnicity. I didn’t hit any marks. And I attribute that to Sept. 11.” Gregory R. Gifford, a plaintiffs’ attorney at Rubin, Glickman & Steinberg in Lansdale, Pa., said: “Juries are being apparently conservative and less sensitive. I think jurors recollect the horrors of Sept. 11 and they say: Why is this individual who gets up bright and early and goes to bed every day but who may not have a pleasant day in between complaining when 6,000 of our dear human beings will never be alive again?” James J. Kutz, an attorney at Duane, Morris & Heckscher in Harrisburg, Pa., has tried two civil cases since Sept. 11, one of which was a personal injury case that began Sept. 17. He agreed with Gifford’s theories about the mindset of jurors. “Everyone was clearly affected,” Kutz said. “The jurors have seen the difference between real catastrophe and something less than that.” The award, Kutz said, echoes the sentiment “I now know what true injury is.” Kutz prevailed in his personal injury case, but the award was lower than he expected. In particular, he was alarmed that the Chester County, Pa., jury would cut the plaintiff’s medical expenses after it had found the defendant negligent. “You might see increased death verdicts. But in soft tissue, I don’t think that will change. It is subjective and not readily understood by jurors,” Kutz said. But as weeks have passed, plaintiffs’ attorneys said jurors are less jittery and less distracted. In fact, they have been attentive to cases, and several attorneys have received sizable awards. Gerald B. Baldino Jr. of Sacchetta & Baldino in Media was picking a jury the day of the attacks. He said his immediate fear was that jurors would not be able to focus on the plaintiff’s injuries or would compare them to those suffered in the attacks. He promptly settled the case. “I think that within days of the event, the jury would have been distracted,” Baldino said. “Had I not settled the case, I had given a lot of thought about saying that we all should get back to the business of America, and civil trials are part of the business in America.” Since then, Baldino and his partner, Thomas F. Sacchetta, have found juries empathetic to plaintiffs. In the eight weeks since the attacks, few of Baldino’s fears have materialized, and a jury awarded one of his clients five times the amount offered by an insurance company. ‘I WAS SURPRISED’ “I was concerned initially, but I have been surprised,” Sacchetta said of Delaware County, Pa., juries. “I wasn’t sure how they would react, but I feel the awards have been better since then. I think the jury is placing more emphasis on people than before. They are more attuned to people.” Since Sept. 11, Thomas R. Kline of Philadelphia’s Kline & Specter has had four medical malpractice cases settle for what he considers fair value of the claims. However, he did notice some impact immediately following the attacks. Two medical malpractice cases, one in Philadelphia and another in Northampton County, Pa., both had one or more defendants who were Indian. Defense counsel settled in the middle of voir dire, fearing that their clients might be impacted by prejudice toward foreign nationals of Middle Eastern dissent. In the Philadelphia case, Kline said, the judge asked the prospective jurors whether a defendant’s nationality would affect their fairness, and not one blinked an eye. “It tells me that the feeling of the insurance carriers and defendants is that there is a recognition for value of loss of life or loss of ability to enjoy life,” Kline said. The day of the attacks, Kline was presenting opening arguments for a medical malpractice case in New Brunswick, N.J. The judge asked the jurors if they would like to be excused from the case or continue it at a later time. The jury unanimously decided to carry on, and same jurors will return for the rescheduled trial in December. “The attitude of jurors was remarkably resilient and focused on the individual and being ready, willing and able to decide the case,” Kline said. Lawrence S. Finney of Levy, Angstreich, Finney, Baldante, Rubenstein & Coren in Philadelphia said juries seem empathetic. A Bucks County jury, which heard the case one week after the attacks, awarded Finney’s client $3 million for a delayed prostate cancer diagnosis. “It was a concern that given the national tragedy that people would not be able to focus on the problem of one individual,” Finney said, “that it might seem less important. The jury was attentive to every detail and rendered a just result.” Gerald A. McHugh Jr., a plaintiffs’ attorney with Philadelphia’s Litvin, Blumberg, Matusow & Young, was scheduled to start a case the week of Sept. 11, but the judge and the attorneys decided to postpone it until late last month. McHugh said he watched the courts closely in the weeks following the attacks to prepare for his medical malpractice case but sensed no changes in jurors. The delayed case settled last month two days into the trial. Conversely, Kutz has found the voir dire process revealing about the monetary value jurors are willing to assign to injuries or loss of life. He said he believes jurors are comparing the tragedies suffered Sept. 11 to injuries of some plaintiffs. Kutz said, “The giveaways are done. People now think that losing someone means rubble in New York City. You can see it in voir dire.” Gifford agreed. “On soft tissue, I wonder who would ever want to give me any dollars in relationship to what has happened — in light of New York and Washington,” he said. MOVING FORWARD Most area attorneys, particularly those who try serious personal injury or fatal medical malpractice cases, think juries have returned to normal. “Jurors have drawn a bright line between Sept. 11 and their own duty. I didn’t see any evidence of the jury having concerns,” Shanin Specter of Kline & Specter said of a recent personal injury case he tried in Lehigh County, Pa. “Maybe there was a concern, very immediately following the aftermath — the first week or so. If so, I think it has subsided.” However, the few attorneys who are having to fight for jurors’ attention and for higher awards for their clients are waiting for the return to normalcy. Kutz said he believes the holidays will be the turning point. Stagliano said the shift would come when the public’s fears are calmed. “I think it will return to normal when other things return to normal,” Stagliano said. “When people start to go out, travel, head to New York and see Broadway shows, then things will start to heal; when people get their mail from the post office and don’t have to be concerned about washing their hands.”

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