Populist Juries Side with Plaintiffs

Courtroom Trends

Michigan Lawyers Weekly

By Carol Lundberg
June 1, 2009

A jury is the ultimate focus group, says personal injury lawyer Mark Bernstein. And in this economy, that group is saying it's more likely than it has been to side with the little guy in personal injury trials.

"It does seem like juries are more likely now to stick it to big corporations," said Bernstein, of Farmington Hills-based The Bernstein Law Firm, which represents plaintiffs in personal-injury cases.

According to data from Florida-based Jury Verdict Research, the average award in business negligence trials was $1.76 million in 2007 (the most recent year from which data was collected and analyzed), up from $1.68 million in 2006.

The year in which business negligence jury awards were highest, $2.178 million, was 2001. Although the economy was robust that year, it also was the same year that the Enron scandal surfaced, which negatively impacted popular opinion of corporations and so-called big business.

"These are good times for plaintiffs," said Brian J. McKeen, of Detroit-based McKeen & Associates PC, who represents plaintiffs, mainly in medical-malpractice, birth injury, and personal-injury cases. "In light of all the corporate scandals and greed, people are sick of abuses of the public."

At the same time, juries are not as likely to favor large awards as they may have in a better economy.

"It's just kind of logical, if you're going in front of a jury and two or three of the jurors are underemployed or unemployed and another two or three have watched their pensions disappear, it may be difficult for them to return big numbers in marginal cases," Bernstein said.

James Lozier, of Dickinson Wright PLLC's Lansing office, said that even though juries are more sympathetic to plaintiffs, they also are attentive to businesses, and that mindset follows them into the jury room.

"People are concerned about businesses continuing to exist. So any additional empathy they may have for the plaintiff is offset by the concern that we're in an unprecedented economic downturn, especially in this state," said Lozier, who represents defendants and plaintiffs.

In the past, he said, a poor economy was tied to big verdicts for plaintiffs. But today, the tie is far less reliable.

One thing McKeen says is reliable in a troubled economy is the focus on family.

"During times like this, people have to look at what's really important -- their children, their families," he said.

That may have played in McKeen's favor in a recent case of his, where a jury awarded an Iowa woman $1.7 million after a doctor's and a hospital's actions led her to miscarry her baby in the 34th week of her pregnancy.

The mother went to the emergency room with bleeding and abdominal pain. The hospital transferred her to another hospital 102 miles away, and ignored a pattern of non-reassuring heart tones, McKeen said.

If the physician had not ignored the pattern, the mother's placental abruption may have been properly diagnosed, and she never would have been transported the 102 miles, McKeen said.

Her baby would not have died during an emergency C-section at a point in the pregnancy when the baby could have survived if the mother had been properly diagnosed, he added.

The jury agreed that the physician and the hospital had acted in violation of the Emergency Medical Treatment and Active Labor Act (also known as the "patient anti-dumping law"), which prohibits transfer of unstable patients and pregnant women in labor when the risk of the transfer outweighs the benefit.

"The whole thing with the progressive movement is that people are realizing we are all in this together and we really are our brother's keeper," McKeen said. "Personal responsibility is big. Large medical groups and corporate groups are not always being responsible, and that does not resonate well with a jury."

Even if a jury would be likely to side with a plaintiff, sometimes the biggest challenge is getting a plaintiff to hang in there long enough to reach a fair settlement, or go to trial.

As the economy bears down on clients, they become desperate and willing to accept lower amounts in settlement, even if they're very focused on recovering damages, Bernstein said. In the past, someone who had been injured may not have been as desperate because a spouse's income, or savings or home equity could carry the family during settlement negotiation.

Not anymore.

"I'm seeing many more lowball offers from insurance companies than I have in a long time," Bernstein said. "They're trying to save a buck because they're in financial trouble. They're preying on the financial misfortune of the clients."

When one of Bernstein's clients sued an insurance carrier that tried to deny paying for her medical treatment after an accident, the jury came back with a strong message for insurance companies, Bernstein said.

"They didn't trust the insurance company, and even though we had asked for an amount in the $300,000's, the award was $435,000," Bernstein said. "That was in Macomb County, where jurors are traditionally very conservative; it was all a matter of who they were going to side with, a postal worker from Roseville, or an insurance corporation. They not only sided with my client, but they were sticking it to [the insurance company]."

But a client's will to fight, or ability to hold out for what's fair, is heavily impacted by the economy, McKeen said.

"So the question is: Does the attorney have the will to fight?" he said. "It's the responsibility of a good attorney not to let the client succumb to that pressure. It's up to the attorney to not let the client undersell their case.

"Justice should not be at a discount because of a tough economy."