The perils of personal injury law

National publicity for large awards overshadows reality in New Hampshire

 On the morning of June 12, 2014, a teenage driver who had been up all night celebrating his high school graduation fell asleep at the wheel in the northbound lane of Ocean Boulevard in Hampton. His vehicle swerved across the road, striking two women walking along the shoulder of the southbound lane of Route 1A. Both women sued.

Lisa Beaudry settled out of court, but retired schoolteacher Karen Weinhold and her husband, Charles, went to court and, after a trial lasting about two weeks, won a $9 million verdict against the motorist, the state of New Hampshire and R.S. Audley Inc., whose construction work on the seawall on the east side of the highway was the reason pedestrians had to walk on the west side, on a section of the road where there is no sidewalk and only a white line separating pedestrians from passing vehicles.

In its verdict, reached on Jan. 19 of this year, the jury at Rockingham County Superior Court in Brentwood awarded $8.5 million to Mrs. Weinhold for her severe injuries and $500,000 to Mr. Weinhold for loss of consortium, or the benefits of family relationship. The jury also assigned the state the greatest share of the liability, 40 percent, with 30 percent each assigned to the motorist and the construction company.

The detour that forced pedestrians onto the unprotected part of the highway was part of the Traffic Control Plan proposed by Audley and approved by the state. Nonetheless, the state, in a post-trial motion for a Judgment Notwithstanding the Verdict, argued that the incident of “a driver falling asleep, veering across the double yellow line, driving completely across the southbound lane and striking two pedestrians on the other side of the street is not foreseeable and should have precluded any finding of causation” related to the Traffic Control Plan.

On May 29, Judge David A. Anderson denied the motion, finding that the jury could reasonably have concluded the state was aware of a “general probability of danger” and had a duty to anticipate it by, for example, requiring jersey barriers along the shoulder of the road.

Anderson, who had presided over the trial, also dismissed the argument that the jury awarded the greatest share of the liability to the state in order to “ensure that its award would be funded by the deep pocket defendants.”

“The judge gave clear instructions not to do that,” said Vincent Wenners, one of three lawyers representing the Weinholds at the trial. “Our argument was the state controlled how the traffic was to be deployed.”

Verdicts and facts

Most lawyers will tell you multimillion-dollar verdicts are rare in New Hampshire and most often reflect a severe degree of harm to the victim(s).

“New Hampshire juries are, by their very nature, cheap,” said Manchester attorney Andrew Dunn, before amending “cheap” to mean “frugal.” Dunn, who has litigated on both sides of personal injury cases, said “New Hampshire verdicts tend to be lower than other states,” naming New York, Alabama and Chicago as places known for “notoriously high verdicts.”

For decades, lawsuits claiming millions in damages have generated headlines and heated debate throughout the nation. Even in accidents where severe injuries occur, there are examples of people seeking massive awards for relatively minor damages.

In the famous Staten Island Ferry crash that killed 10 passengers and injured dozens of others in 2003, The New York Times reported one suit filed by a passenger seeking $200 million for loss of sleep and another calling for $10 million for emotional trauma.

More ink than coffee has been spilled over the McDonald’s hot coffee case in 1994, when a jury awarded nearly $3 million in compensatory and punitive damages to a woman who suffered serious burn injuries when she spilled a cup of McDonald’s coffee on her lap.

Manchester attorney Scott Harris

The verdict sparked an outcry against extravagant juries and “runaway verdicts.” Eventually, some of the facts brought up at the trial made their way into news reports, including the fact that the woman suffered third-degree burns over 6 percent of her body, was hospitalized for several days and required skin grafts. McDonald’s kept the coffee at 180 to 190 degrees Fahrenheit, hot enough to cause third-degree burns on contact in as little as three to 10 seconds, according to expert testimony. More than 700 other claims had previously been brought against the company over burns from its coffee, some of which McDonald’s had settled. The jury awarded $200,000 in compensatory damages (later reduced to $160,000) and $2.7 million in punitive damages, reduced by the trial judge to $480,000.

New Hampshire awards

New Hampshire law does not allow punitive damage awards, limiting liability to medical costs, lost wages and compensation for pain, suffering and diminished capacity to enjoy life.

Though the verdict in the Weinhold case did not specify how much of Mrs. Weinhold’s $8.5 million award was for economic and non-economic loss, the state, after calculating her past and estimated future medical costs, together with lost wages from her part-time job, argued that $7,254,879.93 had been awarded for pain and suffering and loss of enjoyment of life.

While acknowledging Mrs. Weinhold’s severe injuries, the state argued in its motions to set aside or reduce the verdict that “an award of more than $7.2 million for non-economic losses is unprecedented [and] manifestly exorbitant.” After reviewing the facts of the case, Judge Anderson determined “the evidence reasonably supports the size of the award.”

The massive injuries included a broken tibia and a fractured cervical spine, described as a “hangman’s fracture” that required a reattachment of her head and neck. During nearly 100 days in a Boston hospital, Mrs. Weinhold underwent several painful surgeries, including a tracheotomy when she was unable to sustain her own breathing. Following her hospitalization, she underwent several months of painful physical therapy. She struggles to swallow and is in constant fear of choking, he noted, and her previous activities, which included biking, jet skiing and swimming with her grandchildren, are no longer possible. Despite the surgeries and other medical attention she has received, the “hangman’s fracture” has left the connection between her head and neck vulnerable to “internal decapitation,” the judge wrote.

“She gets through every day, but it’s a struggle,” said Manchester attorney Scott Harris, another of the lawyers who represented the Weinholds. Harris, who is also current president of the NH Bar Association, said the perception that juries typically grant overly generous awards is due to the small number of cases that gain media attention.

“Just like a lot of things, reports are usually confined to cases that win and win big. Thousands of cases result in a very small award or no award at all,” he said. “Juries, in appropriate cases, award significant damages.”

Medical malpractice

What makes a case “appropriate” is, of course, open to debate and subject to the complexities of the law and the facts peculiar to each litigation. Portsmouth psychiatrist Leonard Korn once took on as a patient a man in a psychiatric unit who later ran down a hall and into a wall, severing his spine. The injury left him a quadriplegic and left Korn facing a multimillion-dollar medical malpractice suit. 

Portsmouth psychiatrist Leonard Korn

“I had met with him once on a weekend,” said Korn who was not at the facility when the incident occurred. But because a physician may be found legally responsible for the condition of a patient in his care, the doctor found himself in court some 4 1/2 years after the event.

By the very nature of his condition, the injured patient seemed likely to elicit sympathy from the jury.

“He didn’t have any movement in his arms or legs. He even had respiratory assistance because his chest muscles didn’t work very well. He came in to testify at my trial in a wheelchair and on oxygen,” Korn recalled. If he had lost the case or had agreed to a settlement, the outcome would have been reported to the National Data Bank for Physicians, rendering a blow to his reputation along with a significant increase in future premiums for malpractice insurance.

“A jury exonerated me after five days of testimony and one day of deliberation,” he said.

Even as serious injuries are litigated, a popular image remains of personal injury lawyers as “ambulance chasers,” in pursuit of large awards and subsequent fees for minor injuries, or as fortune-seekers hoping to turn a dented fender into a pot of gold. But Manchester attorney Hector Zumbado contends a sympathetic defendant can sometimes turn a significant injury into a dead end for the plaintiff.

“I represented this fellow once in a case I’ve often lamented,” Zumbado recalled. “The gentleman was originally from Puerto Rico and spoke little to no English … He was very uncomfortable in a courtroom setting and had to testify through an interpreter. He had been rear-ended by somebody and had a significant injury to his right shoulder that required surgery.”

The defendant was a very attractive, pleasant young woman who, Zumbado believes, charmed the jury by her appearance and demeanor. “I felt the jury just fell in love with this young girl. She said, ‘I did hit him, but not very hard.’ So the jury deliberated and they came back with zero compensation.” Zumbado said he had turned down a chance to settle with the defendant’s insurer, but thought the facts of the case indicated his client would fare better in a trial.

“I thought it was entirely decided by the fact that my client never really connected with the jury” the way the “engaging young woman” had, he said.

Settlements

The majority of lawyers bringing personal injury claims “are qualified and competent counsel who represent clients with potentially good claims,” said Ron Lajoie, a medical malpractice defense lawyer in Manchester.

“There are claims,” he added, “that are brought that have little merit, sometimes brought by an attorney with little or no experience, or by a pro se plaintiff with an axe to grind.” Lajoie recalled an incident from early in his career when he was defending the city of Nashua in a motor vehicle case brought by a man who had collided with a police officer responding to a call.

“He decided to file suit against the officer and the police department, claiming extensive injuries to his back, problems with his ability to work and lost wages as a result of those injuries. During my investigation I found out this plaintiff had been in another accident and had claimed the exact same injuries. It turned out his lawyer had no idea of the first accident. In front of the jury, he withdrew as counsel and the plaintiff withdrew his case against the town. And the court awarded costs to the defendants.”

Manchester lawyer Joe Kelly Levasseur

While court cases will sometimes grab the spotlight, estimates of the claims that are resolved out-of-court in confidential settlements run as high as 90 to 95 percent. Plaintiffs’ lawyers often counsel their clients against settling for too little too soon. Keene attorney Charles Donahue recalled a client with a neck injury who was not disabled, but suffered chronic pain. 

“He turned down a $20,000 offer,” Donahue said. “The jury awarded $200,000. These kind of cases are usually settled around here for $10,000. The only reason they went up to $20,000 was because it was on the verge of a trial.”

“The [insurance] adjusters are always complaining about the demands we make, but they never give you a reasonable offer up front,” said Joe Kelly Levasseur, a Manchester lawyer who is also one of the city’s aldermen at large. “If you ask for $10,000, they assume the case is only worth three. If you really want $10,000, you’d better ask for $50,000.” That’s why he counsels his clients to have patience. “They’ll lowball the hell out of somebody hoping they’re desperate for cash.”

As for “ambulance chasers,” while the term is often heard, the practice is not allowed.

“It’s a violation of our rules of ethics to solicit — to approach a party to offer services,” said Levasseur. “I can’t go to a hospital and knock on a door and say, ‘I would like to represent you.’ Whether there are lawyers who do that, I don’t know. I haven’t met any.”