Damages and MedMal Defense

by Dennis Elias

What medical malpractice defense attorney hasn’t struggled with the characterizations of the harms and losses claimed by the plaintiff? The lore from the defense side is that the defense advocate would be foolish confronting damages claims as it would make him/her and the client look heartless, cold and only concerned about the money. The plaintiff’s counsel is not so constrained. Prominent plaintiff’s trial consultant David Ball rightly asserts in the first few pages of his well read book, Ball on Damages, that, “The only goal of trial is to get money for your client.” Not so shy, right? In the face of such unabashed enthusiasm, is it right for defense counsel to abdicate the damages portion of the case? It’s all about the money in the end, isn’t it?

In the latest issue of The Jury Expert, Jeri Kagel addressed this well known civil defense counsel avoidance of talking money or damages to a jury. Her article is available here “Damages: The Defense Attorney’s Dilemma.” Kagel provides a nice survey of the background research and trial advocacy lore associated with pervaying a persuasive case to the panel as well as some useful general tips on handling damages in each element of the trial from the defense perspective. Responding to Kagel’s article with blog posts on damages and the defense are Edward Schwartz  Edward’s blog post and Sean Overland  Sean’s blog post both esteemed trial consultants and members of ASTC. Each of the these article brings concordance to their advice to “Run at the Ghost, Not From It”. Also of interest is a fine small study by Jury Behavior Research on whether jurors “split the difference” when considering competing damages arguments. They don’t.

Repeatedly defense counsel will swing for the fences mounting a robust negligence and causation defense, banking on the jury simply never getting to damages. Most of case preparation time is spent gathering intelligence on the plaintiff’s evidentiary and testimony proof and then setting up SOC and Causation experts to shoot it down, or at least poke some big doubt holes in plaintiff’s theory of the case.  The plaintiff will be devoting a significant plurality of his/her time developing their damages case, you should too. Don’t drop the ball.

For the defense, the fault case lays a foundation for questioning damages. Jurors’ tend to award higher damages when there is a dovetailing of proven egregious acts or omissions on the part of the defendant AND the jury is moved to alleviate the suffering, harms & losses of a “worthy” plaintiff. Conversely, damages are denied, mitigated or decreased when the alleged acts are either exaggerated, venial, accidental, unintended or are the result of genuinely reasonable behavior & choices. Damages are also deflated or denied when it becomes apparent to the jurors that the plaintiff has not behaved rationally or reasonably in the situation and contributed to the outcome.  Character, plaintiff conduct and “personal responsibility” counts as every trial is essentially a referendum on the character and choices of the parties. During your examination of witnesses, make sure you elucidate each opportunity the plaintiff had to make a choice or take an action that either facilitated or failed to mitigate the outcome.

When jurors have to make numerical estimates on the basis of uncertain or incomplete information, they tend to adopt a reference point or initial estimate, an anchor, and then adjust the initial figure up or down to reach their judgment. The plaintiff benefits from setting the money anchor. The smart plaintiff will test for damages ceilings in voir dire, announce the damages demand in opening (if allowed), repeated the anchor amount as often as possible in his damages case in chief, and ring the money bell repeatedly in closing arguments. What should you do as defense counsel?

In each phase of the trial, defense counsel should establish and anchor a damages position. This need not be a dollar amount, per se. In voir dire, queries such as this can be helpful, “Some folks feel so moved when hearing and seeing the losses and hurts experience by another that they look for ways to do something to help them. How many of you are like that kind of person, even if only a little bit?” And now the first suggestion of an anchor, “Some folks would feel so bad about turning another person away and awarding them no money, that it would be hard to overcome that deeply held value to be charitable and compassionate to others no matter what. How many of you would find yourself struggling, even if just a little, when told by the Judge that unless you find my client, Dr.X medically negligent, you must not award any money to the plaintiff to help them out?” The anchor? “No money.”

In the  opening statement and case in chief, using expert testimony on damages can have an anchoring or adjusting affect. The avenue of merit for the defense is to emphasize the adjustment from the plaintiff’s anchor. If you allow that number to stand unconfronted, it’s likely to be the fulcrum point for pro-plaintiff jurors during deliberations.  Your life care planner, economist, and the cross examination of the plaintiff and plaintiff’s damages witnesses, etc., should emphasize variance from the anchor numerically with a foundation of lack of necessity, inflation of costs and ability of the plaintiff to make a recovery and thus a contribution to their own self sufficiency. Framing damages in such a manner that suggests the plaintiff is asking for amounts beyond restoration is effective because it suggests the plaintiff is asking for undue and unnecessary enrichment.

Jurors want their damage awards to accomplish something that achieves the pre loss status quo of the plaintiff. Any suggestion that the anchored damages amount represents a gain from the status quo may result in adjustment by the jurors. When it comes to tangible expenses, use references to costs and essentials that are available to the jurors’ day to day life. Availability means these examples can come readily to their mind as a reference  point. Costs and expenses that are outside their daily experience must be illuminated and the jurors should be made aware of less costly or alternative means to the same end.  Alternatives allow the jurors to adjust from the plaintiff’s anchor.

Jurors have the greatest angst when it comes to the non-economic damages. We frequently hear jurors say, “No amount of money will bring him back.”, or, “What good will money do when she misses her husband?”.  Research has found that many jurors struggle with or even outright oppose awards for loss of consortium, pain & suffering, anxiety, humiliation and other subjective harms. This predisposition makes these elements of damages ripe for opposition.

There are some general areas to broach in confronting the plaintiff’s damages:

  • Point out the plaintiff’s unreasonable choices and irresponsible actions/omissions
  • Emphasize how the plaintiff did not act the way any sensible person would have in the situation
  • Confront elements of the medical and life care plan that are unnecessary and exorbitant
  • Point out the unclear and dubious purpose and efficacy of extraordinary treatments, adjuncts, services, etc.
  • Show how the plaintiff already has personal and community resources to deal with their problems.
  • Throwing money at a problem is a shotgun approach and unwise and ineffective. Point out what (if anything) is strictly necessary.
  • Point out to them that if they don’t see what purpose money would serve in the damages claim, they should never award money that serves no clear purpose.
  • Remind them that sympathy and empathy for the plaintiff must not determine the award and that fairness to all parties requires they stick to the rules and only consider the evidence.
  • Start and finish in closing by telling the jury that you have provided them with all the tools they will need to determine that your client’s actions were competent and reasonable under the circumstances, so you doubt they will even have to consider awarding money to the plaintiff. But, should they find a discussion begins about money, you want to provide them some talking points to consider during that discussion. “No matter how sad or troubled a person may be; it is not right to force another to pay for what they did not do and did not cause.”

Jurors struggle with the hard task of damages determination. You do yourself and your defendant client a disservice by shying away from a quietly confident contradiction of the premises, promises and posturing of the plaintiff’s damages case.

Picture credit: http://www.flickr.com/photos/daviddmuir/2125697998/

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