Maximizing Damages

Maximizing Damages
Wentling, Focus Groups, and Ball

By Sylvester "Sly" James, Jr.
The Sly James Firm, Trial Lawyers, P.C.
802 Broadway, 7^th Floor
Kansas City, Missouri 64105
Telephone: 816-472-6800 Facsimile: 816-472-6805
sly@slyjamesfirm.com
http://www.slyjamesfirm.com/

Adding up the economic losses is the easy part of most cases. It is far more difficult to convince a jury to consider repayment of significant non-economic losses. Juries often find it difficult to evaluate non-economic losses and we, the trial lawyers, often do too little to show them how.

We must find ways to focus jurors' attention on the appropriateness of placing value on a person's life, and other forms of non-economic harms, even if a precise equation is difficult. In the process of focusing juror attention on damages, we must separate the process and consideration of economic harms from the process of considering money for non-economic harms. As we discuss losses with the jury, we should define exactly which losses are economic and which are non-economic.

I. Wentling

In this era of tort reform and arbitrary caps on non-economic damages, perhaps the most effective way to maximize recovery for our clients is to make sure that we don't confuse "economic" damages with "non-economic" damages. In wrongful death cases, for example, we sometimes recover less than full economic damages by failing to fully understand the economic components of what we often consider to be non-economic losses. For example, loss of "services" are often recoverable damages in a wrongful death case. The very definition of the term "services" provides a reasonable argument that services could be and should be considered an economic loss rather than a non-economic damage factor.

"Service" may be defined as:

1. Employment and duties or work for another, as for a government;

2. The performance of work duties for a superior or as a servant;

3. a. Work done for others as an occupation or business;

b. A variety of work done for others, especially for pay.

Now may be the time to appeal to courts to expand the definition and scope of economic damages as the Kansas Supreme Court did in Wentling v. Medical Anesthesia Services, P.A., 701 P. 2d 939 (Kan. 1985).

In Wentling, the plaintiff husband, Rocky A. Wentling, brought a wrongful death action on behalf of himself and his two children based on the defendant's malpractice in improperly administering anesthesia to his decedent wife. At trial, plaintiff offered a damage instruction that read, in pertinent part:

Your verdict must be for the plaintiffs, and two types of damages shall be allowed as follows:

Limited Damages: Limited damages include mental anguish, suffering, bereavement, loss of society, and loss of companionship... For these items of damage you may not allow more than $25,000 which is a limit set by the legislature...

Unlimited Damages: There is no legislative limit on the amount you may allow for unlimited damages. This type of damage includes all items listed below:

a. For Rocky Shawn Wentling and Shane Adair Wentling:

1) Loss of services, attention, parental care, advice, protection.

2) Loss of educational, physical, and moral training and guidance.

b. For Rocky A. Wentling:

1) Loss of services, attention, marital care, advice and protection...

"Unlimited damages must relate to a loss of money, or something by which money or something of money value may be acquired."

Id. at 941-942.

The Defendant argued on appeal that the italicized clauses of the "Unlimited Damages" instruction were erroneous because there was "no evidence of pecuniary loss" and, therefore, those items should have been included in the limited damages and capped at $25,000. The Court disagreed.

The Court reviewed the evidence presented at trial concerning loss of services, care and guidance, and specifically made note of testimony regarding the couple's closeness in their marriage, how the decedent cared for the plaintiff during his illnesses and how she helped him in some of his construction jobs. The Court also took notice of how the decedent wife had been deeply involved in the in-home care of the couple's handicapped son.

The plaintiffs also produced an expert economist who testified about the monetary value attached to specific homemaking chores such as dietician, chauffeur, buyer, cook, dishwasher, housecleaner, laundress, nurse, and others. Based on her age and projected time of retirement, he established a monetary value of $586,071.00. Id. at 947. He also testified that there were other elements of loss not included in that figure. Although he could not place a specific dollar figure on such elements as moral training, social training, educational assistance, a mother's role as nurturer and counselor, companionship and services to her husband, these elements, nonetheless had real economic value insofar as they contribute to a person's welfare, ability to mature, and obtain productive employment in society. Id.

In considering the conflicting positions of the parties, the Court posed this question: "Is the inability of plaintiff and his expert witness to translate the loss of services, care and guidance into a specific monetary figure fatal under McCart to plaintiffs' recovery? We think not." Id. at 948. They found that plaintiff had satisfied his burden of proof by showing the nature and extent of the losses, and "the triers of fact are presumed to be capable of converting the losses into monetary equivalents on the basis of their own experience." Id. (Emphasis added.)

To hold otherwise would allow the defendant tortfeasor a virtual windfall simply because these losses are not capable of precise measurement. In addition there is really no serious contention that the care, guidance and services of a spouse and parent lack monetary value.

Id.

Wentling may offer a blueprint for expanding the definition of economic damages in a wrongful death case outside of the State of Kansas. The ability to make this expansion is especially critical in medical malpractice and nursing home negligence wrongful death cases where non-economic losses are often capped.

II. Focus Groups

We use formal focus groups to help us evaluate all of our significant cases. We are particularly interested in testing out damage theories and arguments to find out how potential jurors might receive and react to them at trial.

We usually set aside an entire Saturday and do two (2) separate focus groups - one in the morning and one in the afternoon. We use the afternoon session to make adjustments and re-frame arguments, positions, and exhibits based on comments from the morning session.

In a recent focus group held to help us evaluate a wrongful death case in which radiologists failed to diagnose breast cancer, only two (2) of the twelve members of the morning session were willing to compensate the surviving husband and adult son for non-economic harm and losses. Even at that, the two participants who were willing to do so were only willing to consider amounts averaging $87,500.

After reviewing the comments of the morning group, however, we re-framed some of our arguments for the afternoon session. The corrections produced improved results wherein six (6) of the ten participants were willing to include money for non-economic harms ranging from $417,468 to $1,000,000 with a median amount of $158,734, and an average amount of $389,078. Of the six afternoon participants who were willing to include money for non-economic harms, one decided that $300,000 was appropriate, two decided on $500,000, and one decided on $1,000,000.

We attribute the difference between the morning and afternoon results to increased and more targeted focus on damages generally and non-economic damages specifically. We spent more time defining the losses and offered more anecdotal and testimonial evidence of how the decedent's death affected the survivors.

We can also use less formal (and less expensive) focus groups to evaluate almost any case. The very first focus group we used consisted of workers from other offices in our office building who responded to a flyer we distributed throughout the building that read:

FREE PIZZA and $10.00
Help lawyers solve a problem
at lunch on _____DATE_____
11:30 to 12:30
Suite 400
Please RSVP to 816-931-1400

We had more people than we could use for this focus group but we called upon the "extras" at a later date. When our group came for lunch, we simply gave them a very even-handed presentation of the case and asked them to answer questions based on what they had just heard:

1. What more do you want to know about the facts and why?
2. Who is at fault and why?
3. What amount of damages do you think are fair?
4. What questions would you ask the Plaintiff? The Defendant?

Although this was an inexpensive and informal focus group, we gained very valuable and helpful information at a very reasonable cost.

IV. Ball

I would highly recommend David Ball on Damages, a Plaintiffs' Attorneys' Guide for Personal Injury and Wrongful Death Cases as required reading for anyone who seriously wants to examine the issue of damages. In his far-ranging discussion, Ball offers a multitude of suggestions about how to weave the discussion of money and damages into every aspect of trial from Voir Dire to Closing Argument. Although some of his theories are too expansive for this paper, some are well worth mentioning in this context.

Ball argues that there are four basic principles of damages to shape juror decisions about money damages:

1. Harm (degree - the greater the harm, the higher the sum);
2. Worthwhileness (of money);
3. Jurors job (to fix, help, and make up for); and
4. Time (proportion spent on harm and money vs. that spent on liability.)

Ball also argues that the case is about whatever you spend the most time talking about. Therefore, if you want the jury to consider big damages, you must spend a significant portion of the trial talking about damages. He further argues that defense attorneys want to spend minimal time talking about harm and money and concentrate on liability instead. If we fall into the pattern of concentrating on liability, we make the case about liability.

Ball discusses at length juror motivations for giving or not giving. Some jurors are motivated to give in order to:

• Fix;
• Help;
• Make up for;
• Express anger;
• Make a social statement;
• Make a defendant face responsibility;
• Take care of the likable person(s); and,
• Reward persistence.

Focus Group comments can be used to tie into the appropriate motivations in ways that may resonate with the jury.

Other jurors may be motivated not to give, according to Ball, in order to:

• Stop high verdicts;
• Avoid criticism;
• Because they fear plaintiff will not use it as intended;
• Because the purpose of the money is unclear;
• Because the situation appears hopeless;
• Avoid making the lawyer or the plaintiff(s) rich; and
• Keep insurance rates down.

Neither list above is a complete summary of Ball's theories, but you get the idea.

In short, Ball makes several arguments worth mentioning - that we should change our language ("harm" not "pain and suffering" and never "award"); understand what motivates jurors to both give and refuse to give; and, how to empower the jurors to do the right thing. His arguments are sensible, logical and doable.

The John Wayne Factor

I believe jurors pay homage to John Wayne because nobody likes a whiner. John Wayne never whined! Even if he was mortally wounded, the most he would ever say about his injuries is, "Shucks ma'am, it's just a flesh wound." We translate this factor into courtroom action by having others talk about the harms and losses caused by the decedent's injury and/or ultimate demise. We use a "Harms List" approach recommended by Ball.

A "Harms List" is a listing of every harm a person suffered and the consequence of that harm. During the trial, we use a large board to list the harms, consequences and fixes, and then we have each witness prepared to testify about some of the harms and consequences they observed. We scour the medical records for harms, consequences and fixes, and then have the treating physician, nurses, etc., testify that indeed, what they documented in the records is true and reflects what they actually observed. As they testify, we write in their names and, where possible, cite to the record where the harms are documented.

The advantage to using a Harms List is that it sits in front of the jury for extended periods of time during the trial and the jury hears and sees all of the harms the party suffered from someone other than the injured party. The list is then readily available for use during Closing and helps greatly to focus the jurors on the issue of damages.

CONCLUSION

The search for fair and adequate damages need not be done in the dark. Torches of innovation, definition, and understanding can light the way to the recovery of reasonable damages in personal injury and wrongful death cases. The suggestions above only scratch the surface. Find more and share your experiences so that other injured parties may benefit from our collective knowledge.