The Biggest Injury Verdict Reductions Of 2020
By Y. Peter Kang
Originally appeared in Law360
Law360 (December 16, 2020, 3:48 PM EST) — While tort reform advocates point to so-called runaway jury verdicts to justify damages caps, the experience of the past year shows even the biggest awards are vulnerable to being second-guessed and either tossed or significantly reduced on appeal.
Plaintiffs’ attorneys say it’s already an uphill battle to take a case to trial and win a big award, let alone preserve it through post-trial motions and the appellate process.
Mark D. Moreland, a plaintiff’s-side medical malpractice attorney in Charleston, West Virginia, told Law360 that having a big money verdict vacated and a new trial ordered is an ever-present fear for him and his colleagues.
“It’s a nightmare. You’ve done the work, you’ve got the verdict and convinced the jury not only on liability, but on the intensity damages, and all of a sudden they are up in the air as much as they were during the opening statement,” he said. “It’s a frightening aspect.”
Here, Law360 looks at a handful of court reversals that were handed down in 2020 that slashed some of the biggest injury verdicts of years past.
Fla. Court Nixes $109M Verdict in Botched Surgery Suit
In May, Florida’s Second District Court of Appeal vacated a $109 million verdict in a suit accusing a University of South Florida surgeon of causing a woman to lose all four limbs by botching a routine surgery, saying the school was unfairly denied the opportunity to blame a third party.
A three-judge appellate panel unanimously agreed to order a new trial in a suit accusing USF physician Dr. Larry Glazerman of negligently piercing patient Lisa-Maria Carter’s small intestine during a minimally invasive surgery to remove an ovarian cyst. The alleged negligence triggered a series of events that took place at Tampa General Hospital and led to a devastating infection and gangrene requiring amputation of all four of Carter’s limbs, according to the suit.
USF successfully argued the Hillsborough County judge erred by excluding previous testimony given by one of Carter’s expert witnesses — attributing her injuries to errors made by a Tampa General “critical care team” — which prevented USF from mounting an “empty chair” defense, in which a defendant casts fault on an absent third party. The critical care team had reached a pre-suit settlement with Carter, according to the opinion.
The Florida Supreme Court declined to review the case in November, according to court records. The court of appeal’s decision sets up a third trial in the case, with two previous trials ending in hung juries before the $109 million verdict was awarded in January 2018.
The case is Board of Trustees of the University of South Florida v. Lisa-Maria Carter, case number 2D18-1219, in the District Court of Appeal of Florida, Second District.
Live Nation Gets $102M Award Reduced in Worker Injury Case
A Manhattan trial court judge in July reduced a $102.1 million verdict to $53.7 million in a suit accusing Live Nation of causing event worker Mark Perez’s severe brain injuries at a 2013 concert at Jones Beach Theater on Long Island, saying the awards for future lost income and future pain and suffering were excessive.
New York County Justice John J. Kelley said a $75.2 million award for future pain and suffering, to be paid out over 43 years, was excessive and reduced it to $30.1 million. Justice Kelley similarly held that a $5.2 million award for future lost wages was too high and cut it to approximately $1.9 million.
Perez had been setting up a multilevel promotional booth for Best Buy at the Live Nation-operated venue when a forklift operated by a Live Nation employee crashed into the booth, sending the 30-year-old Perez tumbling to the ground, where he suffered a fractured skull and multiple traumatic brain injuries, according to court papers.
Perez’s attorney, Benedict Morelli of Morelli Law Firm, told Law360 in July they were satisfied with the outcome because even though the verdict was nearly halved, the judge’s “extremely articulate” and thoughtful opinion made it more likely it will withstand an appeal.
Morelli noted that if affirmed, the $40.1 million award for past and future pain and suffering will be a New York record for a personal injury or medical malpractice case and easily exceed the current highest pain-and-suffering award of $16 million.
The New York Supreme Court’s Appellate Division agreed to review the case in November, according to court records.
The case is Mark Perez v. Live Nation Worldwide Inc., case number 158373/2013, in the Supreme Court of the State of New York, County of New York.
Texas Jury’s $101M Trucking Crash Award Wiped Out on Appeal
A Texas jury’s whopping $101 million verdict in a suit accusing an oilfield services company’s truck driver of causing a collision while high, which was later cut to $31.6 million, was reduced to nothing by a state appellate panel in August.
A three-judge Court of Appeals panel for the Twelfth District found the reduced award to be excessive and ordered a new trial in a suit alleging FTS International Services driver Bill Acker negligently rear-ended motorist Joshua Patterson’s vehicle, causing him to suffer neck and back injuries requiring surgery. A drug test Acker took hours after the incident turned up positive for marijuana, amphetamine and methamphetamine.
The Upshur County jury awarded $26.3 million in compensatory damages and $75 million in punitive damages, which was later reduced to $5.3 million by the trial judge due to Texas’ cap on punitive damages.
The appellate panel found that the jury’s award of $2.3 million in economic damages for medical expenses and lost earnings was supported by the evidence, but that its $24 million award for noneconomic damages such as pain and suffering was based on “sparse and highly contested” evidence, according to the opinion.
Despite the panel’s finding that the jury reasonably determined FTS was liable because of the company’s numerous failures during the hiring and training process, it ordered a new trial on all issues because noneconomic damages can’t be precisely calculated by an appellate court.
FTS has asked the Texas Supreme Court to review the case; its petition for review is due on Dec. 28, according to court records.
The case is FTS International Services LLC et al. v. Joshua Patterson, case number 12-19-00040-CV, in the Court of Appeals for the Twelfth District of Texas.
Pa. Panel Voids $40M Award for Baby’s Spinal Injury
A Pennsylvania appeals court in July vacated a $40 million verdict and ordered a new trial in a suit accusing an obstetrician of negligently performing a delivery that caused an infant’s permanent spinal cord injury, saying certain medical literature was wrongly admitted as evidence.
A three-judge panel held the trial judge erred by allowing the family’s counsel to read excerpts from a textbook titled “Volpe’s Neurology of the Newborn,” which likely unfairly influenced the jury into believing that a “snapping” or “popping” sound heard during the 2013 delivery was evidence of Dr. Steven M. Troy’s negligence and proof that he damaged the baby’s spinal cord.
“We find that the admission of the hearsay evidence from the Volpe text was extremely prejudicial,” the panel said. “Because the error in the admission of this evidence was of such consequence that, like a dash of ink in a can of milk, it cannot be strained out, the only remedy, so that justice may not ingest a tainted fare, is a new trial.”
The suit filed by parents Alex and Kira Charlton claims that after successfully delivering the infant’s identical twin sister, Troy negligently applied too much force on the infant’s spine, causing the injuries, and that he should have opted instead for a cesarean section. The family said the doctor’s negligence caused the child to suffer a spinal cord injury and torn nerve roots, resulting in a lifelong paralysis below the upper chest.
After a two-week trial and roughly 12 hours of deliberation in January 2018, a Pennsylvania state jury found the doctor was negligent and awarded the Charlton family more than $40 million in what was touted as the largest personal injury verdict in Delaware County history at the time.
The case is Alex Charlton et al. v. Steven M. Troy et al., case numbers 2937 EDA 2018 and 2945 EDA 2018, in the Superior Court of Pennsylvania