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May 31, 2006

I've had two lawyers ask me so far if I'm doing this to make money.  Actually, my wife's not completely convinced that my law practice is intended to be profitable.  As she said the other night, "The only thing that amazes me more than what you'll do for money is what you'll do for no money."

Speaking of no money... A personal injury defense lawyer once told me that the McDonald's coffee case was the best thing that ever happened to the insurance industry. More than a decade later, after countless stories of juries returning defense verdicts in cases of admitted liability, I don't think there's much room to debate that proposition.

Actually, there are three different ways in which plaintiffs can get hammered here.

The first is the one just mentioned: when the jury returns a defense verdict where liability is undisputed or admitted. While there are some nice cases out there like Vescuso v. Lauria, 63 Ohio App. 3d 336 (Cuyahoga 1989) and Starcher v. Adams, 1997 Ohio App. LEXIS 1225 (Franklin Cty. 1997), which held that defense verdicts were against the manifest weight of the evidence where it was clear that the defendant was liable and the plaintiff was injured, the more recent trend is exemplified by Jones v. Owens, where the court upheld a defense verdict, concluding that "either the jury did not accept that plaintiff sustained damages or defendant's negligence did not cause whatever damages plaintiff may have suffered."

The second type of situation is the "zero damages" award, which is the good news/bad news joke where the plaintiff gets the verdict, but little or no money. As might be expected, the variability in individual cases has prevented the 8th District, or just about any other court, from coming up with a clear rule for those kinds of cases. In Sutherin v. Dimora, for example, the court reversed a denial of a motion for new trial, holding that the evidence of certain of plaintiff's injuries was undisputed, but several years earlier, in Koler v. Leff, 1994 Ohio App. LEXIS 3627 (1994), the court upheld a jury award of $500 where the plaintiff claimed $12,000 in medicals. And just a few months ago, in Stadler v. Earney, the court reversed the grant of a new trial in a zero damages case, holding that the trial court hadn't done anything more than give conclusory statements about why he'd granted the motion, and remanding it back for further explanation.

The last type of situation is one in which there is a fairly consistent rule of law: where the jury awards the plaintiff her specials, but gives no award for compensatory damages. Plaintiffs in those cases often argue that the result is inconsistent - if a jury felt that an award for medical expenses was appropriate, that can't be squared with a determination that the plaintiff wasn't injured. There's some logic to that argument: it's hard to see how a jury could find that medical expenses were "reasonable and necessary" if the plaintiff wasn't injured.

The courts, by and large, haven't been sympathetic, as last week's decision in Welch v. Ameritech from the 10th District shows. After reviewing the case law, the court stated that it wasn't prepared to declare, as a matter of law, that a person always suffers pain from an injury that requires medical treatment. Our court arrived at the same conclusion last year in Uhlir v. State Farm.

The arguments here aren't particularly compelling. The Welch court's use of the initial stages of cancer as an example where medical treatment can be incurred without there being any pain and suffering is of questionable relevance in the context of automobile accident cases. The court in Uhlir correctly noted that the jury could have found the plaintiffs' testimony about their pain and suffering to be not credible, but doesn't answer how at the same time the jury could have regarded as credible their testimony about the necessity of the medical treatment.

But the major problem with these cases isn't the courts - it's the cases themselves. The plaintiffs in Uhlir sought nothing other than emergency room treatment until almost a month and a half after the accident, and even their own doctors acknowledged that they had extensive pre-existing conditions. In Welch, where the plaintiff asked for $1.4 million and the jury responded by awarding $694 for the emergency room bill, the plaintiff had been injured in four previous collisions, one sufficiently severe to require fusion to her neck. The bottom line appears to be that if you're going to try bad cases to a jury, don't expect the court of appeals to bail you out.


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