Myth, Math & Money: A Modern Approach to Economic Damages in Catastrophic Injury Cases
The stakes are extremely high for attorneys litigating on behalf of catastrophically injured plaintiffs. Victims of catastrophic injury face lifelong medical and custodial care expenses, and the results of their personal injury cases can make the difference between being able to afford life sustaining care and becoming a ward of the state.
Catastrophically injured plaintiffs rely heavily on their lawyers to evaluate whether a proposed settlement will provide for their future needs, to decide whether to settle a case or take it to trial, and ultimately, to maximize recovery to meet the plaintiff’s future economic needs. Catastrophic injury cases are vigorously defended, and the plaintiff’s attorney must be especially creative and careful in order to obtain an outcome which will provide life long care for the client.
Many lawyers in Utah were surprised at the $16.4 million verdict we obtained in 2001 in Gallegos v. Dick Simon Trucking. The defense reasoned that Utah was a conservative state and Utah juries do not generally award big sums for general damages. Believing that a jury in Utah would never award an eight-figure sum in a personal injury case, the defense offered slightly more than $8.0 million at the courthouse steps. This offer, though substantial, was not sufficient to fund a quality care plan for our client, so we chose to try the case. We were not surprised by the verdict because the economic evidence presented at trial predicted the award, nearly all of which was ultimately paid by the defendant’s insurer. (1) Now that the case is finally over after nearly eight years of litigation, we will share some thoughts concerning how to present economic damages effectively on behalf of a catastrophically injured plaintiff.
In our view, most eight figure verdicts in catastrophic injury cases are driven by the economics of health care rather than a broken legal system in need of reform. (2) The cost of caring for the catastrophically injured continues to rise at alarming levels, with no solution in sight. In particular, the cost of nursing home and long term custodial care, which the most catastrophically injured patients require, continues to increase at rates much higher than other sectors of the U.S. economy.
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(1) Dick Simon’s insurance carrier ultimately paid a total of approximately $15.9 million to resolve the case.
(2)A common myth is that large jury verdicts awarded in recent years in catastrophic injury cases are the result of “runaway” juries, bent on punishing corporations rather than compensating injured plaintiffs. While “runaway” verdicts occasionally occur (and are nearly always overturned following trial), large catastrophic injury verdicts are more often a byproduct of rapidly increasing medical costs, projected over the plaintiff’s lifetime.
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This article was written by Jeff Eisenberg and David A. Cutt.
