Value of Baltimore Personal Injury Cases Post Freddie Gray

Baltimore City settled a wrongful death and survival action by Freddie Gray’s family for $6.4 million.  The criminally unfair Maryland Local GovernmentBaltimore Police Tort Claim Act would have capped these claims at $400,000.  So Baltimore City settled for a whopping $6 million more than the maximum value of the case.   Said another way, the settlement was 16 times the cap for personal injury and wrongful death claims had this case taken the standard path and been heard by a Baltimore City jury.

High profile cases mold public perception in Baltimore and throughout Maryland about our civil justice system.  People form impressions on how well the system performs when placing a dollar amount on personal injury and wrongful death cases.

On some level, Freddie Gray is a Baltimore specific McDonald’s coffee case.  It has now been 24 years since Stella Liebeck spilled coffee on herself at a McDonald’s drive-through in New Mexico and that case continues to inform prospective jurors on how personal injury cases actually work.  Freddie Gray may leave a similar legacy in Baltimore.  What will that legacy be?  What misimpressions will juror carry into the jury box as a result of this case?  I believe there are unintended consequences to this settlement that will be felt for years.

I think these are the Freddy Gray takeaway messages:

A Wrongful Death Case is Worth About $6.4 Million

We now have a known anchor for wrongful death cases: $6.4 million. At least half of potential jurors in Baltimore know this number, and it is going to have an impact on how they value wrongful death cases.

This is a relatively good value for a wrongful death case.  The problem is there is a cap on pain and suffering damages in Maryland.  So the most you can recover for a death in Maryland in 2016 is $2,037,500, plus any economic damages (assuming this was not a Maryland Local Government Tort Claims Act with a $400,000 cap).   You don’t get to this number in most death cases.  First, it can’t be a medical malpractice case, which has a lower cap. The victim must have more than one wrongful death beneficiaries.  Finally, there must be conscious pain and suffering before death that is worth $815,000.

Jumping over the Maryland cap is not a challenge in wrongful death cases.  At Miller & Zois, our wrongful death verdicts have ranged from $2.5 million to $8 million.  Even in conservative jurisdictions that are tight-fisted with jury awards, the jury is not going to say a death is worth $500,000.  So getting higher wrongful death verdicts is of no help and may even be counterproductive for victims?  Why?  Because jurors see significant verdicts and think the system is not working as it should.

There is a flip side to this coin. Knowledge of higher damage award anchor jurors to larger damage awards that might be helpful in personal injury case in Baltimore that are not likely to go over the cap.

Advantage: Push

Victims Get $6.4 Million in Wrongful Death Settlements

Freddy Gray’s family probably pocketed somewhere between $3.8 million and $4.2 million after attorneys’ fees and expenses.  That is a life-changing amount of money. The Freddie Gray settlement fosters the impression that victims are getting these types of agreements and are pocketing the verdicts they receive.  But this is an anomaly. In the real world, verdicts get reduced to conform to the damages cap, and settlements are made in light of that cap.

The problem is it leads to the idea of “jackpot justice” where victims are profiting from the harm that was done.  Undeniably, there is a strong resentment of the idea of Freddie Gray’s family now living in a penthouse.  People have a visceral hatred of someone (who is not them, of course) “getting over” on the rest of us.  Many economists believed during that housing crisis that it would help the economy if we gave support to people who were failing to pay their mortgage.  But the idea gained no currency because people who had been paying their mortgages were out of their minds resentful at the thought that people who didn’t pay their mortgage would get help and they wouldn’t.  I guarantee you some of these people would have preferred a depression to letting the government bail out people who were not making mortgage payments.

As jurors, people have the power to right injustice, and they are going to bring these desires into the jury box in any case they hear.  So if you are mad about Freddy’s Gray’s settlement, and you think people are getting over on the system, you are going to award less in damages, particularly in cases where the damages case rests in large measure on the victim’s self-reporting of the impact of the harm that was caused.

Advantage: Insurance companies and hospitals in conservative counties who will be more skeptical of victims. 

There is No Cap on Damages in Maryland

One day, I’m going to commission a study on what people know about the cap on damages in Maryland.  (My commission I mean I’m going to start calling random people.)  Most people do not know about the cap and, somewhat inexplicably when you think about it, jurors are not told either.  I have to think that some people who believed there was a cap on damages and now think to themselves, “Gee, if Freddy’s family got $6.4 million, I must have been wrong when I thought there was a cap.”

Of course, there is a cap on non-economic damages in Maryland. I think most people would disagree with it in many cases.  I think — another poll I should commission — that people would be opposed to our damages cap and the lack of exceptions to it if they knew about it.  But, too often, people don’t know about the cap until they learn their claim is subject to it.  So when you couple the “I’m not going to worry about caps because it will never be my problem” sentiment with lack of information about the cap in the first place, it is hard to get inertia going to push Maryland’s legislatures to stand up to the lobbyists and do the right thing for victims and change our cap.

Advantage: Insurance companies and hospitals which benefit from jurors thinking that victims are getting more money in death cases than they really are.

Local Government Caps Are Flexible

I’ve railed on about the general damages cap.  But let’s talk about the Maryland Local Government Tort Claims Act.  It caps damages at $400,000. Think about this, I’m begging you.   The value of a human life is worth $400,000.  It is beyond awful.  I feel like I’m the only one screaming about it.  Google it and try to find someone other than me whining about it.

But Freddie Gray makes this apathy much worse.  The take-home message is the caps is teaching us that these things are not rigid and that in serious cases, they will be cast aside for justice. Nothing could be further from the truth.

Advantage: Baltimore City and Maryland counties who will retain the right to literally get away with murder without any public backlash. 

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