If the first four months of 2014 are any indication, large verdicts and settlements in Pennsylvania personal injury cases this year are on pace to outnumber those in 2013.
A review of all the state court results The Legal has reported on over the past 16 months shows that from January through April of this year, there have already been seven personal injury verdicts and settlements of $5 million or more in venues across the state. Two of them have been eight-figure results.
By comparison, The Legal reported on 17 verdicts and settlements of $5 million or more during all of 2013; 12 of them were in the eight figures.
In Ciechoski v. Phoenixville Hospital, from January, a Chester County jury awarded $32.8 million to a 3-year-old child who suffers from severe cerebral palsy as the result of sustaining brain damage minutes
That was not only the largest reported result in a state personal injury case so far this year, it was the largest reported result to have come out of Chester County in the past 20 years, according to sibling publication PaLaw magazine.
In Nowak v. Veolia Energy Philadelphia, from February, the family of an electrician who was killed when a crane hook fell on him reached a $17 million settlement in the Philadelphia Court of Common Pleas with the owner of the crane, the company contracted to inspect and repair the crane and the contractor of the decedent’s employer.
In addition, two of the biggest results so far this year have occurred in rural counties that have either rarely or never before appeared on the lists of largest verdicts and settlements PaLaw has compiled annually since 1994.
In Adams v. Poly-San, from February, a man who was rendered quadriplegic when two of his relatives accidentally tipped over the portable toilet he was using in an attempt to play a practical joke on him settled with the toilet’s manufacturer and installer, as well as the two relatives, for a total of $5 million in the Sullivan County Court of Common Pleas.
No Sullivan County case has ever appeared on the lists of largest verdicts and settlements.
In McConnell v. Guru Global Logistics, a Lawrence County jury handed up a $5.5 million award in a wrongful-death case to the parents of a 22-year-old man who died shortly after his vehicle was struck by a tractor-trailer.
Only one Lawrence County result—the $2.8 million medical malpractice verdict in the 2006 case Lombardo v. Gardner—has ever made the top verdicts and settlements list.
Thomas R. Kline of Kline & Specter said he’s noticed the upward trend in personal injury verdict and settlement amounts over the past few years.
Kline said he believes jurors, particularly in the suburban and rural counties, are becoming more open to compensating plaintiffs in meritorious cases as the “corrosive and malignant environment” of juror nullifcation that existed at the height of the tort reform debate in the early 2000s gradually fades into the past.
Scott B. Cooper, a partner at Schmidt Kramer in Harrisburg, said he believes the uptick in case valuations in Pennsylvania is the culmination of a number of factors over the past few years.
One of those factors, Cooper said, is the influence on the public consciousness of recent high-profile injury cases stemming from the Jerry Sandusky and Catholic priest sex-abuse scandals, as well as the Luzerne County “kids for cash” scandal and, on a more national level, the General Motors ignition switch recall.
“The everyday juror has started to realize through real-life experiences that people are really starting to get injured,” Cooper said.
Cooper and Kline weren’t the only ones to posit that social shifts might have something to do with the bigger recent results in injury cases.
Robert J. Mongeluzzi of Saltz Mongeluzzi Barrett & Bendesky in Philadelphia said he believes jurors have also become more willing to render large verdicts in meritorious cases because they are bombarded with huge dollar figures in their everyday lives.
“We’re reading about this company that was bought for $44 billion, this athlete was paid this or this recording artist made $100 million this year,” Mongeluzzi said, adding, “Twenty years ago or 30 years ago, those were unheard of numbers. People didn’t make that and companies didn’t trade for billions of dollars.”
But today, Mongeluzzi said, “I don’t think jurors are afraid of big numbers anymore and, in the right cases, they’re coming back with big results.”
That said, Kline noted that jurors do appear to be more open to awarding large verdicts for economic, rather than noneconomic, damages.
That was certainly the case, for example, in Ciechoski.
While $1 million of that award was for past and future noneconomic loss, $800,000 was for loss of future earnings and the remaining $31 million was for future medical expenses.
“I think if you looked at these verdicts, you’d see the same thing: an emphasis by jurors on compensating hard numbers rather than conceptual damages,” Kline said.
Naturally, as jurors have become more inclined to award large sums to plaintiffs, case valuations have risen, resulting in larger settlements as well, Kline said.
“There is no doubt that settlement values are determined principally by jury verdicts’ potential,” Kline said.
Mongeluzzi said insurers have become acutely aware of the rising jury verdict amounts in catastrophic injury cases and have adjusted accordingly.
“In those exceptional cases, jurors are making exceptional awards and insurance companies are paying exceptional sums [to settle] because they’re merited,” Mongeluzzi said. “Insurance companies didn’t get to be worth billions of dollars because they’re stupid. Their entire job is to assess risk and they wouldn’t be [settling for] these numbers if they didn’t calculate the risk.”
Mongeluzzi said technological advances have also aided in driving up case valuations, noting that his firm frequently uses settlement videos as a means of showing insurers the potential damages that could be awarded if a case goes to trial.
Mongeluzzi said his philosophy on settlement videos is that they’re the most effective way to get the attention of decision-makers at insurance companies, who are rarely, if ever, actually present during trial.
“They can see in real terms, visually, what it’s going to be like in the courtroom,” Mongeluzzi said.
Similarly, Mongeluzzi said, his firm has increasingly been using jury focus groups to get a sense of how jurors might react at trial and then sharing the results with defendants’ insurers.
According to Mongeluzzi, both tools were employed to great success in the Nowak case, which his firm handled.
As with the insurance industry, the rising valuations of injury cases in Pennsylvania have certainly not been lost on the defense bar.
Nancy K. Raynor of Raynor & Associates in Malvern, Pa., who represents doctors and other health care providers in medical malpractice cases, said the tort reform measures enacted in 2002 have largely weeded out the weak med mal filings, leaving only cases with very serious injuries and high damages, typically filed by very sophisticated plaintiffs attorneys.
Add to that the fact that rapidly advancing medical technology continues to result in ever-more-complicated medical procedures that sometimes lead to equally complicated lawsuits, Raynor said.
These cases are “very work-intensive” to properly defend against, Raynor said, and have required the defense bar to collectively step up its game.
Just as plaintiffs attorneys have begun to wield technology to their advantage in injury cases, Raynor said, defense attorneys have become increasingly vigilant about social media, combing through plaintiffs’ Facebook pages and other public sites for evidence that can be used at trial to refute damages claims.
Still, Raynor acknowledged that the rising dollar amounts in injury cases have been “troublesome” for defense lawyers, making the already tough call between settling and going to trial even more difficult.
Given some of the huge jury verdicts that have come down in recent years, Raynor said she has increasingly found herself advising insurers to tender coverage in order to settle cases.
“I’m asking for a lot more tenders with a lot higher settlement values than I ever did before,” Raynor said.