This article I found today suggests, thank goodness, that while the economy may tank, the perceived "value" of brain injury and its consequences does not tank as well. Today’s post is a reprint of Barbara L. Jones article on February 24, 2010 for Finance and Commerce entitled "Economy’s down, but value of brain-injury cases isn’t."
Lawyers finding juries are more sympathetic during hard times
It’s a truism that juries, and hence insurance companies, become tight-fisted with damages arising from personal injury lawsuits during a recession, but that isn’t necessarily accurate when it comes to catastrophic injuries, such as traumatic brain damage. Some attorneys who handle such cases have found that if anything, the recession has encouraged them.
“The high-end cases are still high-end,” said Woodbury attorney William Harper, who recently settled two brain injury cases for the policy limits of $1 million. “The only reason they settled is that they were worth a lot more.”
Ever since the 1983 Supreme Court case of Short v. Dairyland, the law has been clear that an insurer can be liable for excess damages if the court finds a bad-faith failure to settle the case.
Defense attorneys agree that the economic climate has not diminished the value of brain-injury cases.
All personal injury cases with real objective damages that strike a chord with jurors still have the potential for high damage awards, according to defense attorney Mark G. Pryor of Minneapolis.
St. Paul defense attorney Terry Votel agreed, adding that catastrophic injuries are particularly invulnerable to the ups and downs of the economy.
There are several reasons the damages in brain injury cases remain high, attorneys say.
One is the skyrocketing costs of medical care. In fact, Harper said, the legal system’s method of awarding damages cannot keep up with the cost of lifelong medical care because jurors are instructed to reduce the verdict to a present value amount. But medical costs don’t “reduce,” Harper said.
Neither do the costs of caring for the injured person in the home. “My goal is always to bring the client home. That is a cost that should be borne by the (party found to have committed the tort),” said Anoka attorney Fred Soucie.
Another reason is that brain injury cases are readily demonstrable, both by medical evidence and through changes in the plaintiff’s behavior and moods. A traumatic brain injury will affect the person’s personality, judgment and concentration — which in turn affect the person’s ability to earn a living.
When the injury is catastrophic, the damages usually are self-evident. “I have had jaded insurance company lawyers say that the person has no pain and suffering because they are [so injured that they are] oblivious. That’s immoral and tactically stupid,” Soucie said. If jurors feel that the injured person is aware and suffering, they will punish the defense lawyer who appears callous in the extreme, he explained.
But even a “mild” injury can be proven, Soucie continued. In fact, calling the injury “mild” can be a misnomer. Technically, the term “mild” is defined by the period of post-injury amnesia or loss of consciousness but the effects can be severe. The person may change dramatically, and friends, family and co-workers can explain the difference, he said.
Emotional value for juries
Additionally, the injuries are very compelling to jurors, Soucie said. “There’s always some juror skepticism but their hearts and minds are easily wrapped around these injuries,” he said.
The injuries are also capable of medical demonstration, said Minneapolis attorney Peter Riley, who recently settled a $3.4 million case involving multiple skull fractures among other injuries. Often the injury will show up as a bleed on a CAT scan or on an MRI, he said. “The defense [then] has a hard time saying the injury is due to something else,” Riley said.
Additionally, neuropsychometric testing can test for memory and brain functioning, showing exactly where the brain is damaged, and the test results can be matched to the patient’s symptoms, Riley said.
The neuropsychometric testing also can reveal any compensatory measures the brain has taken to make up for the injury, Riley said. In those cases, the jury has to be educated about the test results. If his recent case had called for it, Riley said he would have “backloaded” the plaintiff’s testimony by educating the jury beforehand so they would not have an opportunity to form an inaccurate opinion about the brain damage.
Not all head injuries are the result of trauma that reveals itself physically. Bloomington attorney Richard Ruohonen recently received a $128,000 verdict for a man who received an electric shock. The defendant, the city of Glencoe, had offered $50,000. The man was injured when he touched a pole the city had installed in his yard, but which was connected to a power line. He received five to 10 seconds of electric shock.
An electrical injury is more diffuse than an injury to a lobe of the brain, explained Ruohonen. His client’s injuries included loss of attention and concentration, memory impairment, pain and headaches. He also had a sleep disorder caused by injury to the brain stem, Ruohonen said.
This was a case of a skeptical insurance company. “They basically were saying it was all in his head,” Ruohonen said.
Actually, the case would have been more valuable but the client had a subsequent workers’ compensation injury to his neck. “That was the day the city got lucky,” Ruohonen said. The case might have been worth as much as $250,000 without the second injury, he explained. However, he is pleased with the result.
It would be speculating to say that the economy played role in the size of the verdict, Ruohonen said. It could also be that people in rural communicates are more conservative or that there were a lot of younger jurors (under age 35), he said.
The personal injury business can actually pick up during a recession, Ruohonen said. He noted that he is getting more calls from people whose injuries are two or three years old, and thinks perhaps they are now more hesitant to pursue their own claims. Besides, he added, “people down on their luck can be more sympathetic plaintiffs.”
And jurors don’t have a lot of sympathy for corporate or commercial defendants right now, he added.
“You’ve got a lot better chance if you’re going against corporations or insurance companies because people are upset with them. Those are great cases to try right now,” Ruohonen said.