As Valentine’s Day comes and goes, I’m reminded of the biggest heartbreak I’ve suffered in recent years. It involved a wife and her two young children who lost a beloved 32-year-old husband and father to medical negligence.
We knew it was an uphill battle as we litigated in an unfriendly county where self-interests were at stake in a tight knit community in which the hospital that employed the defendant doctor was a big political and employment player. In spite of this, for as long as I have prosecuted medical malpractice cases on behalf of patient victims and their families, I had not had a case about which I felt so confident.
Going into the trial we had a seven-figure offer that was a significant sign of defendant’s concerns, but was insufficient to compensate the victims. The defendant doctor was on the record admitting to facts that were indicative of his liability, while also completely conceding damages. In my entire career I had never had a physician testify as this defendant did that if he had transferred the patient from the urgent care across the hall to the emergency department (ED) the young father would have had the proper cardiac treatment and lived a long life instead of dropping dead of a heart attack just two weeks later.
In another career first, the coroner testified as an independent witness the patient’s autopsy showed the young father was indeed having a heart attack when the defendant doctor was treating him in the urgent care and sent him home rather than to the ED on the premises.
Although we fought mightily, inexplicably, the jury ruled in favor of the doctor. We were dumbfounded and heartbroken.
Never fear, I thought. This is a case tailor-made for a successful appeal. Nothing neutralizes an unfriendly venue like the Appellate Court that encompasses a greater geographic area and supposedly takes a fresh, independent look at the case. Even though appeals of jury verdicts are rarely reversed, we soundly believed at the very least the three appellate justices would give this family a new trial. That was not to be! It turned out the appellate court was equally inhospitable.
If anything, we trial lawyers are relentless, but our hearts can be broken too. So we filed for permission to appeal to the Illinois Supreme Court where few cases are given access and almost no medical malpractice cases are heard. In addition to the years of countless, uncompensated hours and the expenses of over $200,000, it appeared neither my client, nor I, would recover anything.
Notwithstanding that the odds were stacked against us, still I could not surrender. The final blow came just two weeks ago when our petition for leave to appeal was denied marking the end of the line for our shattered clients. Our hearts will always bear the scars of this blatant injustice, the consequences of which this young family will have to endure for the rest of their lives.
Attorney Laird M. Ozmon
I like that the indomitable Ruth Bader Ginsberg and I have something in common. She started out as a trial lawyer, just like me. Not the much-maligned caricature of a greedy, unscrupulous individual; but the kind of person who puts her time, money and effort into fighting for the rights of this country’s disenfranchised citizens like women and minorities.
At this country’s inception the right to vote was restricted to white men. Women and people of color were treated like chattel and routinely suffered discrimination and injustice. They have had to fight for every right they have today. It is indisputable that trial lawyers stood shoulder-to-shoulder with them to get and keep these rights.
Over 100 years ago blacks and women finally earned the right to vote. In 1964 Congress passed Title VII of the Civil Rights Act prohibiting discrimination in employment. In 1972 Title IX outlawed discrimination against women and girls in education. Changing the law was just the beginning. The scope and enforcement of these laws and others like it have been the subject of litigation since their passage and stoked the fire in every trial lawyer who burns for justice for all.
This history has taught us justice does not come without a fight. The law evolves because trial lawyers are constantly pushing against the forces of evil and ignorance. We are advocates for civil and human rights and against discrimination.
Before she joined the Supreme Court in 1993, Justice Ginsberg was on the front lines of protecting the rights of women gained in Title IX. Today women fill over half of our universities and a record number are finally making their way into public office with 131 women elected to our current U.S. Congress. Her work is directly linked to these monumental advances.
In the course of my legal career Illinois had a $10,000 cap on damages for victims under the Wrongful Death Act. This means regardless of how egregious a person’s conduct was that caused an innocent person’s death the most their family could recover was $10,000. Over the course of my career, tort reform advocates sought three times to extend caps by imposing them on damages in personal injury cases. As president of the Illinois Trial Lawyers Association I spearheaded the fight to declare such caps unconstitutional. Today these caps don’t exist in Illinois. Victims have access to full and fair compensation without artificial barriers. So instead of lumping us in with the bad guys, think of the tireless Ruth Bader Ginsberg who typifies us trial lawyers and all that we give to right wrongs and cement positive change.
Attorney Laird M. Ozmon
Litigation is expensive. Speaking from the plaintiff’s perspective, costs related to a personal injury claim are steep. Plaintiff’s attorneys do not relish spending money; but the fact of the matter is that in order to prove (or disprove) a case, the parties must hire expert witnesses. Expert witnesses command fees in the thousands of dollars. Costs are driven by simple supply and demand.
Experts are pivotal in proving cases alleging medical malpractice, products liability, slip and fall, or negligent operation of a vehicle including cars, trucks, trains, motorcycles or airplanes. When an issue involves any matter outside of the ken of the average juror, like, stopping distances, the standard of care of a health care provider, or the defective nature of a product like a medical device or piece of machinery, a plaintiff is required to provide expert testimony supporting the cause of action. In the absence of such testimony the case will likely be dismissed well before trial and the plaintiff will get nothing.
Any personal injury case demands medical experts, from treating physicians to retained experts, who provide the testimony necessary to support the plaintiff’s claims for damages. A doctor who treated the plaintiff may testify to the nature of her injuries, but she may need to hire an expert to render an opinion on the likelihood of long term limitations, reduced life expectancy or future medical intervention necessary. Without such expert testimony the plaintiff may not even be allowed to ask the jury for an award of money damages to compensate him for the full extent of his injuries.
There is a direct correlation between compelling expert testimony from a qualified, convincing expert in the field and a jury verdict awarding full and fair compensation to the plaintiff. While the price tag is high, it is money well spent, and the plaintiff does not have to pay unless we win. Plaintiff’s attorneys willingly accept the risk as demonstrable evidence of their commitment to their client’s case.
Attorney Laird M. Ozmon
Recently a huge punitive damage award made the news. A groundskeeper sued Monsanto alleging its well-known weed killer Roundup caused his terminal cancer. The jury attributed $250 million of its $289 million award for the plaintiff to punitive damages based on the company’s conduct when it received reports about the adverse health effects of its product that remains in the marketplace today.
In October a California trial judge reduced the punitive damage award to match the award for compensatory damages (i.e. medical expenses, pain and suffering, lost wages, disability) of $39.25 million. The court ruled the ratio of punitive to compensatory damages should be 1:1.
To understand this result and its effects we must define punitive damages. Punitive, a.k.a. exemplary, damages are money damages above and beyond monies dedicated to reimbursing the plaintiff for what he or she lost or suffered. They are intended to punish and deter wrongdoers from repeating their conduct. Such damages are not often awarded, that’s why they are newsworthy.
Punitive damages may be a function of the net worth of a defendant. The size of the award may also correlate to the gravity of the wrongful conduct. Consequently juries may award punitive damages based on emotion rather than a logical equation. With these factors at play, trial judges have the power to reduce punitive damage awards to bring them in line with reason rather than passion. However, what the judge did in the Monsanto case is illogical and contrary to the intent of legal doctrine. Adoption of a 1:1 ratio would most often result in a punitive award insufficient to achieve its goal of deterrence. Maybe a ratio can be just, but 1:1 is a random choice that ignores underlying jurisprudence.
Whatever you think about the size of this award, or the judge’s decision reducing it, verdicts like this reverberate in corporate boardrooms, law firms, the offices of insurance companies and claims administrators, and anyone who serves their interests. So when corporate decision makers read a report potentially linking their product to health risks, or disclosing a defect that could cause injury, their cost-benefit analysis has been materially changed—in favor of the consumer. Regardless of whether you think the cost of any particular award trickles down to the consumer, there is a direct benefit from its impact on future corporate conduct. This is the U.S. tort system working to benefit the public, not the privileged few.
Attorney Laird M. Ozmon
Beware of a recent study conducted by the biased U.S. Chamber Institute for Legal Reform claiming the costs and compensation paid for the U.S. tort system totaled $429 billion for 2016. In an effort to incite public outcry it implies it is scandalous that plaintiffs receive only 57 cents on every dollar paid in compensation.
In all of its hyperbole, the headlines ignore what the study does not reveal. First, let’s deal with the alleged amount of money that goes into plaintiffs’ pockets: 57%, leaving 43% for attorneys’ fees and litigation costs.
Plaintiff’s attorneys work on a contingency fee basis which ensures all citizens, not just the rich ones, have access to our justice system. The typical fee is 33% of the amount recovered plus costs of litigation. For complicated cases, the fee could be up to 40%. This means litigation costs, i.e. expert witness fees, transcripts, record production costs, account for the last 3-10% that did not go to plaintiffs. The figure appears to include insurance costs, which would include defense costs, including defendant’s attorney’s fees.
Remember, contingency fees provide that plaintiff’s attorneys get zero if the plaintiff does not recover any money, defense attorneys get paid by the hour, win or lose. In other words, the 57 cent figure, even if it is true, is deceptive.
Those who seek legal reform unfairly seek to marginalize plaintiff’s attorneys and ignore other significant facts. For instance, medical error is the third leading cause of the death in the U.S. The ability to sue health care providers who commit negligence has created a reasonable standard of care. While mistakes are not wholly unexpected, health care providers know the stakes are high in their profession. With life and limb on the line, if they make a mistake, that is what insurance is for (a $1.2 trillion industry according to 2017 statistics).
The public derives tremendous benefit from our current tort system that is rooted in our constitutional rights, including freedom of speech and unfettered access to a civil jury trial. Major corporations and health care providers wield tremendous power. They are for-profit entities concerned with the bottom line. Our tort system creates a necessary tension between serving the bottom line and serving the patient or consumer, while giving access to all, not just the rich and powerful.
Critics always ignore the successes, the demonstrable evidence the system works. For example, if it weren’t for our current system, companies would still be putting asbestos into buildings despite evidence that established they knew five decades ago it was detrimental to human health. It wasn’t until people suffering from a specific form of cancer started suing that the practices changed. There are countless incidents of litigation that resulted in positive change for the public.
Maybe legal reformers should be looking to the potential perpetrators, demanding proactivity, transparency, even apologies and swift action when they discover a defective product or professional negligence. Accountability is the key to lowering tort related costs. Through this lens, Plaintiff’s attorneys are the human equivalent of the body camera, exposing wrongs, and seeking justice for injured victims.
Attorney Laird M. Ozmon
Recent news events have highlighted the importance of being a compelling witness on your own behalf. The quality of witness’s presentation both superficially and substantively directly impacts one’s ability to make a case. In the context of a personal injury claim, if the plaintiff’s case is populated by credible, quality witnesses, the likelihood of recovery and the value of the case increase substantially. In my experience, when a plaintiff makes an excellent presentation on deposition, I can expect an offer of settlement to come soon thereafter.
There is a lesson in how the witnesses have comported themselves at the Congressional hearings that have recently riveted the nation. Balancing thoughtful, thorough preparation with instilling the confidence in the witness to be authentically themselves takes the supreme skill and experience of a trial lawyer.
First, appearance matters. Well-groomed, appropriately dressed people exude confidence. Looking unkempt or wearing something extremely informal, or even too formal (picture an evening gown at a backyard BBQ) gives the appearance of being out of one’s element—the proverbial fish out of water.
Demeanor is key. Employ coping strategies tore main calm. It is key to tell your story clearly and concisely. Use tips to keep yourself from appearing too anxious, speaking quickly or without thinking, such as counting to three or taking deep breaths. If you find yourself so focused on the answer that you’ve stopped listening to the question, stop and reset, or ask for a break.
Confidence naturally flows from preparation. An excellent trial lawyer will patiently take a witness through the impending proceeding telling her what to expect, reviewing the facts, documents, proffering sample questions and practicing common scenarios, i.e. what to do when there is an objection, how not to guess.
Your attorney should discuss any potential weaknesses. You will strategize about how to respond truthfully while minimizing the shortcomings. A strategy common among defense attorneys is to trot out the complaint and go through each allegation with the plaintiff at a deposition. This is designed to undermine the credibility of claim if she is not prepared and/or hasn’t seen the document.
Being a good witness doesn’t come naturally topmost. This is a team effort, a plaintiff’s attorney cannot testify for his client, but he can give her the tools to be her most compelling advocate.
Attorney Laird M. Ozmon