Articles Posted in Personal Injury Verdicts

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When trying to figure out the settlement value of a personal injury case, trial attorneys pull from usually only one resource: they’re own experience. We pull from our own cases and from cases we have heard about from other lawyers. But how good are we at valuing cases?

First, it is important to underscore how unbelievably important this skill set is for trial lawyers. Most of the time, when a case goes to trial, it is because someone miscalculated the value of the case. The insurance companies rely heavily on data in valuing cases (which sometimes reliably cements their reputation as unfeeling robots). While they deny it, they continue to believe that they can predict how much money a jury is likely to award based on the relationship between the amount of special damages (medical bills and lost wages) and the award for noneconomic damages. Sometimes this logic does hold. The key skill for personal injury lawyers if being able to identify which cases defy the data because of intangibles that data cannot measure.

Most notably, insurance companies invariably devalue the character, or lack thereof, of the plaintiff which is just an unbelievably critical value marker. So the insurance company’s predictions misfire both ways. Knowing when the insurance company has miscalculated the value of a case gives you a tremendous advantage over the insurance company because you know which offers or demands should be accepted – some will be steals – and which cases should be tried.

An article titled “Predicting Civil Jury Verdicts: How Attorneys Use (and Misuse) a Second Opinion” written in the Journal of Empirical Legal Studies provides the answer as to how personal injury attorneys do as a class in estimating verdicts: not good.

The average error for lawyers in predicting the value accurate was 0.387. For a verdict of $100,000, this is equivalent to an estimate of $244,000 or $41,000. That’s a big range. With those estimation skills, it is a wonder more cases don’t go to trial.

The study found that when you averaged the estimates of more lawyers – testing the idea of bouncing case value off other attorneys – the average estimation error dropped to 0.228, which on a $100,000 case is equivalent to an estimate of about $169,000 or $59,000. When expanded to 28 lawyers, the average estimation error was 0.130, equivalent to an estimate of $135,000 or $74,000.

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According to the Personal Injury Valuation Handbook study put out by Jury Verdict Research, the average wrongful death jury award for the loss of a woman is as follows:

Year Award Median Probability Range Award Range Award Mean
2004 $ 1,125,000 $ 341,750 – $ 2,650,000 $ 5,104 – $ 45,500,00 $ 2,836,536
2005 $ 1,168,744 $ 387,500 – $ 3,387,936 $ 3,620 – $ 30,000,000 $ 3,215,919
2006 $ 1,200,000 $ 446,231 – $ 3,000,000 $ 1,550 – $ 15,000,000 $ 2,324,140
2007 $ 881,739 $ 331,541 – $ 2,180,343 $ 12,000 – $ 65,000,000 $ 3,378,401
2008 $ 1,000,000 $ 91,827 – $ 2,875,000 $ 3,858 – $ 93,000,000 $ 4,416,843
2009 $ 1,167,145 $ 317,689 – $ 3,132,750 $ 49,672 – $ 16,577,118 $ 2,170,622
2010 $ 2,400,000 $ 1,300,000 – $ 5,315,000 $ 25,000 – $ 71,000,000 $ 8,652,577
Overall $ 1,172,500 $ 350,000 – $ 3,000,000 $ 1,550 – $ 93,000,000 $ 3,301,389

You can find information as to how the victim’s age factors into average verdicts here.

How does this compare to adult men? Men have a higher average award; woman received a slightly higher median award. I’m not looking at the raw data but the differences appear to be statistically insignificant.

This data excludes, for some reason, loss of services. The median loss of services awarded to surviving spouses of women, 49 years old and younger, was $562,500. Spouses of women age 50 recovered a median loss of services award of $742,591. Minor children of women killed in tort cases received a median loss of services award of $1,000,000, and adult children received a surprising median award of $200,000.

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Jury Verdict Research looked at plaintiffs’ jury awards to get an idea of the value of different types of business negligence injury.

The most frequently injury, not surprisingly, was disc injury claims which made up 12% of the total cases. Interestingly, emotional distress was the next most frequently reported injury at 10%. No, I don’t know exactly what this means, either, but let’s go with it. Back strains, I’m think mostly soft tissue injury, was 7 percent. Bad faith, death and spinal nerve cases each comprised 6 percent of the total plaintiff awards. Brain injury cases accounted for 5 percent, while head injuries, knee injuries, leg injuries, and shoulder injuries each accounted for 4 percent of the cases. All other injuries each made up 3 percent or less of the total number of plaintiff awards.

Injury Award Median Probability Range
Disc Damage $ 141,475 $ 45,000 – $ 502,161
Emotional Distress $ 100,000 $ 16,900 – $ 477,283
Back Strains $ 13,139 $ 5,591 – $ 34,661
Bad Faith $ 103,000 $ 42,361 – $ 537,511
Death $ 1,160,000 $ 383,278 – $ 3,500,000
Spinal Nerve Injuries $ 141,821 $ 40,179 – $ 750,646
Brain Damage $ 577,000 $ 123,237 – $ 3,108,000
Head Injuries $ 50,000 $ 19,000 – $ 163,562
Knee Injuries $ 140,000 $ 50,000 – $ 412,501
Leg Injuries $ 374,000 $ 120,000 – $ 1,452,635
Shoulder Injuries $ 117,000 $ 51,039 – $ 384,250
Overall Injuries $ 150,000 $ 37,500 – $ 736,875

(Again, probability range is the 25th to 75th percentile of verdicts.)

The average business liability claim is worth a lot more than the average personal injury claim. Why? The first, and most obvious, businesses typically have deeper pockets because they have better insurance coverage and assets to stand behind verdicts than most car accident cases. We have handled a lot of car accident wrongful death cases where the recovery is $100,000 or less simply because there is no coverage. Serious injury and death business liability cases are also getting higher value because these injuries do not discriminate as much based on age. Many malpractice cases involve older patients – they are getting more treatment than younger people – so they tend to get less in terms of future economic damages and their life spans are just not as long.

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Jury Verdict Research has some interesting statistics on verdicts on money damages awarded at trial in premises liability claims.

Also included in the report is a look at median awards in different types of premises liability cases. So, at least theoretically, we have on average the same injuries but different defendants. The median award for premises liability claims against owners/operators of industry property was the highest at $250,000. The median awards for other premises liability cases, according to the studies were: $125,000 against recreational facilities; $114,726 against government property; $95,883 against service establishments; $75,000 against residential property owners; and $82,500 against retail stores.

I’m probably overstating the case. Owners of industrial property are far more likely to be mixing with dangerous activities, I’m sure. Still, the differences in the data is pretty striking. Juries definitely consider who their plaintiffs and defendants are and that invariably gets factored into the verdict. It really shouldn’t. But juries are human beings.

The statistics below chart the top and the bottom of the middle 50 percent of all awards (for the Probability Range and Award Range, the first number is the 25th percentile; the second is the 75th percentile).

Year Award Median Probability Range Award Range Award Mean
2004 $81,000 $25,950 – $300,000 $68 – $12,200,000 $452,919
2005 $92,061 $38,150 – $283,401 $108 – $11,153,857 $363,809
2006 $77,281 $21,822 – $300,000 $250 – $15,839,000 $409,651
2007 $100,000 $21,101 – $372,022 $1 – $102,714,734 $848,110
2008 $117,028 $35,714 – $474,842 $879 – $24,162,000 $784,839
2009 $96,768 $25,542 – $334,000 $75 – $5,500,000 $429,767
2010 $85,000 $29,554 – $350,000 $2,050 – $16,000,000 $673,556
Overall $92,611 $28,328 – $336,373 $1 – $102,714,734 $562,441
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Spine

Disc Injury Values

JVR has done a national analysis of jury awards for spinal nerve with disc damage for the years 2004 through 2010.

One thing the study underscores is what every plaintiffs’ lawyer has figured out by osmosis if nothing else: age matters. Young people generally recover much better than older people like me. Shoot.

The overall median award to plaintiffs age 18 and under was $43,997 while the median award to plaintiffs between the ages of 19 and 29 was $67,612. Plaintiffs between the ages of 40 and 59 who suffered spinal nerve with disc damage received a median award of $103,723 and plaintiffs age 60 and older received a median award of $100,000.

The interesting thing about the age numbers is that at some point you see they begin to turn again as juries increasingly begin to blame age for the injuries. I bet if you took this up to 70 and 80 you would see the numbers continue to drop.

Anyway, these are the numbers:

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Headaches

What is the value of head injury cases?

I’m fortunate in that I don’t get many headaches, a blessing I attribute to good hydration and genetic good fortune. On the rare occasion that I do get them, they are debilitating. It is really hard to enjoy much of anything in life with anything north of a mild headache.

Juries struggle in figuring out how to value personal injury cases when the primary injury is a head injury that caused, and may be continuing to cause, headaches.

Why? Because headaches are largely subjective. So the credibility of the plaintiff – which is usually 90% of the game at trial – becomes the entire game because you can’t know the pain level inside someone’s head. Instead, you have to decide if you believe that their report of pain is what they say it is.

According to Jury Verdict Research, the average verdict for headache injuries is $33,423. The median verdict is $11,092. Putting this in context, the average award in apersonal injury case nationally is approximately $791,756. So verdicts in headache cases are 5% of the national average? Wow.

Juries are more inclined to believe older people… or they think young people should just deal with it. The median award for those under 18 was a $7,463. For plaintiffs between 19 and 39, the median award was $8,858. Once you get over 60, the awards rise to $13,454.

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Jury Verdict Research has some interesting data on which injures comprised the largest proportion of cases in which the victim was awarded over $1 million. Here is the category followed by its relative percentage of million dollar verdicts:

  • Death – 28%
  • Brain Damage – 14%
  • Leg Injuries – 6%
  • Spinal Nerve Injuries – 6%
  • Disc Damage – 5%
  • Emotional Distress – 5%
  • Paralysis – 4%
  • Arm Injuries – 2%
  • Cancer – 2%
  • Foot Injuries – 2%
  • Sexual Assault – 2%
  • Vertebra Injuries – 2%
  • Other Injuries – 22%

Did you see any major surprises here? I didn’t except for seeing leg injuries with 50% more million dollar verdicts than paralysis injuries. Thankfully, I think this might be most attributable to the fact that paralysis is, relatively speaking, a rare injury in a car accident.

Where are the million dollar verdicts geographically? The Southwest – comprised of Arizona, California (which I suspect did a lot of the heavy lifting to push these numbers), Colorado, Hawaii, New Mexico, Nevada, and Utah – has the highest percentage of million dollar verdicts with 19%. The Northwest – with Alaska (which generally has high awards actually), Idaho, Montana, Oregon, Washington, and Wyoming has the lowest percentage of million dollar verdicts at 7%. No shock there, either.

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The much anticipated list of judicial hellholes is out. Baltimore made the list once again.

The write up on Baltimore begins with the notion that for evidence that Baltimore is a judicial hellhole, well just ask Miller & Zois.

    Baltimore has been described as an up-and-coming Judicial Hellhole for years, but don’t just take our word for it. Plaintiffs’ firms, such as Miller & Zois, advertise Baltimore as “a favorable jurisdiction for plaintiffs’ injury lawyers.

Is Miller & Zois calling the city a jurisdiction “favorable” for plaintiffs’ attorneys tantamount to prove that Baltimore is a “judicial hellhole” for defendants? If so, I really need to adjust my expectations.

But that is just the start. This report prefers rhetoric to exactitude at every turn and basically reads like a college term paper that was turned in a that last minute. It complains “Judge Glenn” – actually retired Judge Glynn – is rigging the asbestos docket. How? The report does not exactly say. It implies it is by consolidating the cases. Yes, the asbestos cases in Baltimore are consolidated. Baltimore joins a zillion other jurisdictions that have done the same thing. Why? The cases are consolidated on causation, not product identification or damages. This is not a class action lawsuit. The cases are consolidated on damages because it is simple to prove. If you got mesothelioma you either got it from asbestos or you were a vermiculite miner. Call me crazy, I’m willing to let the court figure this out for scheduling purposes.

This is how this report reads from top to bottom. The whole premise of this beat down of Baltimore is just filled with unsupported innuendo. The impression left is that asbestos cases being filed in the city are because of forum shopping, Plaintiffs’ attorneys looking to get to these juries. But the auto plants, shipyards and steel mills, as well as many of the other defendants (Locke Insulators, for example) are located in Baltimore. That’s not forum shopping, it is filing a lawsuit where the harm occurred.

The downright fictions and convenient distortions continue. Baltimore juries are not “notoriously biased against business defendants.” No evidence is cited. The report really focuses on asbestos cases. Yeah, Baltimore juries are mad at asbestos defendants. So is pretty much every jury under the sun that have had a chance to evaluate the evidence.

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The graph in Metro Verdicts Monthly this month is on nursing home verdicts and settlements in Virginia and Maryland over the last 25 years.

The median nursing home verdict/settlement in Virginia was $287,500. In Maryland, the median verdict was $150,000. Virginia seems about right. I think the Maryland data is wrong. Again, I have no idea how Metro Verdict Monthly compiles this data.

Jury Verdict Research did a study that found that nursing home plaintiffs get a median award of $329,000. Defense lawyers are not eager to try these cases for a reason: plaintiffs win at trial a stunning 63 percent of nursing home jury trials. So, statistically speaking, you are more likely to win at trial a nursing home case than a rear end accident case. Crazy, right? Why more lawyers are not pushing for nursing home cases is beyond me. The are not as lucrative as they once were but they are still good cases that also, not for nothing, really help protect nursing home patients.

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Metro Verdicts Monthly’s cover graph is failure to diagnose breast cancer settlements and verdicts in Maryland, Washington, D.C., and Virginia.

By some estimates, between 8% and 12% of cancer cases are initially misdiagnosed. It is hard to call one type of cancer misdiagnosis case more tragic than another. Every misdiagnosis is going to decrease the chance of treating and defeating the cancer. But, many cancer misdiagnosis cases are not medical malpractice cases because the cancer is so aggressive, but breast cancer misdiagnosis cases are fueled by tragedy because breast cancer is often extremely manageable when caught early, and often fatal when missed.

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