Jury Verdicts Reflect Slight Increase in 2000
But Plaintiffs’ Bar, Unsatisfied With Numbers, Renews Voir Dire Call
Published: 1:00 am Mon, January 1, 2001
By PAUL D. BOYNTON
Massachusetts juries were somewhat more generous last year than the previous two years in awarding big-dollar verdicts.
The average award of the top ten jury verdicts in 2000 was $8.25 million, an increase of just over $1 million from $7.2 million from 1999. The average award in 1998 was $7.7 million.
The largest verdict, $27.5 million, is remarkably similar to the previous two years ($28 million in 1999 and $26.5 million in 1998).
The larger average amount resulted from larger verdicts at the bottom of the top ten list. Verdicts seven through ten in 1999 would not have made this year’s list.
Lawyers Weekly’s study also revealed that in total, 17 jury verdicts of $1 million or more were rendered in 2000, just one more than in 1999.
The significant jump to 26 of total million-dollar verdicts in 1998 appears somewhat aberrational, since 1997 saw 20 total such results.
However, the average amount of $8.25 million last year is double the $4.3 million average in 1997.
Confirming conventional wisdom, Suffolk and Middlesex counties turned out the year’s largest verdicts.
In 2000, Suffolk County had five of the top ten verdicts. Middlesex juries were involved in three top ten decisions, as well as four of the seven other million dollar verdicts.
Lawyers Weekly did not include in its top ten list the $328-million verdict rendered by a Middlesex jury on behalf of the family of Jeffrey Curley, the 10-year-old Cambridge boy murdered by Charles Jaynes and Salvatore Sicari. The verdict against Jaynes and Sicari, both of whom are imprisoned for life and are essentially penniless, was obtained for symbolic purposes only, with no chance of collection.
Juries in Plymouth County and the U.S. District Court in Boston rendered the other two top ten verdicts. Other counties involved in million dollar verdicts last year were Essex and Worcester.
Negligence and wrongful death actions comprised five of the top ten verdicts.
In 1999, med-mal cases last year accounted for four of the top verdicts, but in 2000 only one such case cracked the top ten.
Other types of actions garnering top ten treatment in 2000 were age discrimination, eminent domain, property damage from pollution, and civil RICO for insurance fraud.
Biased Juries?
Despite the marginal uptick in verdicts, plaintiffs’ lawyers are still unsatisfied with the state of the Massachusetts jury system.
Personal injury attorneys pointed to the lack of voir dire as the primary reason overall verdicts were not higher.
“Other states have voir dire and we don’t,” said Douglas K. Sheff, president of the Massachusetts Academy of Trial Attorneys. “Other states have many more million dollar verdicts than we do,” he continued. “That’s what speaks volumes to the need for voir dire. I’m discouraged by these numbers. They should be going up, not staying the same.”
Personal injury attorneys claim that jurors are often biased against personal injury plaintiffs, largely as a result of years of propaganda from the insurance industry and corporations that many personal injury claims are frivolous.
Voir dire, plaintiffs’ lawyers say, will help “weed out” potential jurors ardently biased against plaintiffs.
But Boston defense attorney Sean J. Milano contended that the lack of voir dire hampers defense attorneys just as much as plaintiffs.
“I don’t see the argument that the lack of voir dire puts them at a strategic disadvantage,” Milano said. “Defense counsel is left with the same guessing and speculation as to what jurors will bring to the case. What precisely a juror is thinking is the plaintiff’s guess as well as the defendant’s.”
While the top verdicts represent the cream of the crop, according to Boston personal injury attorney Marc L. Breakstone, the negative propaganda has had its most corrosive effect in smaller cases.
“The harsh reality is that when a plaintiff enters a courtroom in Massachusetts, it’s virtually impossible to get a fair and unbiased jury,” Breakstone contended.
“The number of million dollar verdicts, which are disappointingly low, may represent the status quo, but they don’t reflect the worsening picture for plaintiffs generally,” Breakstone added. “The reality is that most cases are dead in the water before the first piece of evidence is introduced because of the hostility jurors have toward personal injury plaintiffs.”
Gary W. Orlacchio of Boston agreed, saying while valuable cases will warrant big verdicts, the smaller to medium-sized cases, “is where we are taking a beating.”
He indicated that cases worth up to about $150,000 fall into that category.
“Even rear-ender motor vehicle cases with clear liability [against a defendant] can be tough to win,” Orlacchio said. “It’s due to jury bias that the average claimant is a fraud. If a plaintiff looks okay, and doesn’t have horrific injuries, it’s very difficult to go forward with that case.”
Secrecy Agreements
One way to combat negative propaganda, plaintiffs’ lawyers contend, is to do away with confidentiality provisions in settlement agreements.
“The secrecy agreements are ridiculous,” Orlacchio said. “They serve one purpose, and that’s to keep secret that a defendant is negligent. They’re against public policy. They’re self-serving … but the carriers have the money. It doesn’t seem right at all.”
Sheff indicated that MATA is actively supporting a recently filed bill that would abolish confidentiality agreements.
But Milano justified the provisions — typically insisted upon in larger settlements by insurance carriers and defendants — as a legitimate way to combat inaccurate publicity.
Defendants in settlement agreements usually state that they are not conceding liability and are simply attempting to resolve the dispute, Milano explained.
But that aspect is often lost when million-dollar settlements are reported in the media, he said.
“What people are reading is that a defendant company has settled a case for millions of dollars and they reach the conclusion that the company has committed some wrongdoing,” he remarked. “Companies don’t want to incur negative publicity and harm their corporate name when they’re not conceding liability.”
Milano added that insurance carriers don’t always insist on confidentiality provisions.
“Many times the insurance companies are not necessarily pushing for it. It’s the [policyholders] who insist on it, since they have more at stake. They hate to see the value of their corporate name eroded by a settlement of a disputed claim.”
Largest Settlements
Lawyers Weekly also surveyed million-dollar settlements in 2000 based on settlement reports submitted by attorneys throughout the year.
The total number of such settlements was 28, with a $120 million settlement of a class action involving deceptive life insurance sales practices topping the list.
The next two largest settlements were a $9 million settlement of motor vehicle tort claim and a $7 million resolution of wrongful death claim emerging from a work-related accident.
But the numbers drop significantly after that, with the next highest settlement being $3.75 million in a motor vehicle accident case.
Sheff was disconcerted by the sharp drop off in settlement amounts.
“Where are the big numbers?” he asked. “You fall of a cliff after the top three for a whole state for a whole year. That’s bad. People are making settlements, but aren’t getting the money they deserve. Perhaps they’re taking short money.”
Orlacchio is convinced other million-dollar settlements are out there, but plaintiffs’ attorneys are restrained from reporting them because of confidentiality provisions.
“There’s got to be a lot more of them, but you just don’t hear about them,” he said. “We want to shed light on the settlements, but plaintiffs’ lawyers are afraid to publicize them.”
