The gravity of the opioid crisis in this country is coming into full relief with more shocking headlines bombarding us every day. It is clear the ever cozier relationship between the medical community and the pharmaceutical industry was the genesis for this cultural addiction: www.theatlantic.com. Doctors admit it is “the biggest medical-initiated problem that ever has appeared in the United States.” Now everyone is paying the price.
My career in medical malpractice litigation tells me cases against health care professionals alleging negligence in prescribing and monitoring opioids will be on the rise at a rate in step with the exponential increase of opioid consumption and deaths since 2000. For example, in 2016 a St. Louis jury awarded a 45-year-old man $1.4 million and his estranged wife got $1.2 million in addition to a $15 million punitive damage award against the physician who prescribed him addictive pain medication. With our justice system (both civil and criminal) unleashing its formidable power on the perpetrators and the populace firmly in the patient’s corner, opioid-related medical malpractice cases like this one will play their part. They will curb these nefarious practices by holding doctors and pharmaceutical companies accountable.
These won’t be your typical medical malpractice cases involving a blistering battle of medical intellectuals butting heads over the intricacies of the standard of care and whether the defendant breached it. Neither will the doctor start the case in their usual position of the vaunted, kindly healer. In opioid cases the tables may turn. Because of the high profile epidemic and the cascading legal consequences at all levels of government against doctors and the pharmaceutical companies that peddled their wares to them, plaintiffs are likely to have a greater advantage in opioid cases.
Of course, the physician’s negligence must still be proven by a medical expert, but the doctor’s defense will be more difficult to establish in the face of these devastating U.S. Government statistics.
In 2016, health care providers across the U.S. wrote more than 214 million prescriptions for opioid pain medication—66.5 prescriptions per 100 people.
As many as 1 in 5 people receive prescription opioids long-term for noncancer pain in primary care settings.
More than 11 million people abused prescription opioids in 2016.
Every day, more than 1,000 people are treated in emergency departments for misusing prescription opioids.
More than 40% of all U.S. opioid overdose deaths in 2016 involved a prescription opioid.
Drug overdoses claimed the lives of nearly 64,000 Americans in 2016. Nearly two-thirds of these deaths (66%) involved a prescription or illicit opioid.
With all of this in the public record and top of mind for American citizens across the economic spectrum who have been affected by the epidemic, health care professionals will be forced to account for the avarice that drove them to denigrate their oath to “Do No Harm.” Only then may their victims begin the healing process.
The prospective jurors who are wading into the jury pool today are not like jurors from the early days of my career as a plaintiff’s attorney. The speed of the cultural changes and shifting attitudes has accelerated precipitously with the advent of technology in general and social media in particular.
For instance, the young people who step into the jury box today are sensitive to identity issues, are less likely to defer to an authority figure, and may have an entirely different relationship to money. Today’s Millennials, Gen Y and Z -ers, are used to accessing massive amounts of information and making a judgment with a click or a swipe—think dating apps like Tinder. Also troubling, their brains are not wired to pay attention for days, maybe even weeks, of trial testimony necessary to adduce the evidence the plaintiff needs to make a case (but that’s fodder for another blog). Their technological environment has created a social psychological unknown: neither a book, nor a cover.
So how does this play out in the courtroom? Anecdotally, there was a recent case involving dental malpractice. These cases traditionally garner a low recovery because the injuries are usually not catastrophic. The plaintiff alleged the dentist’s negligence caused a 25-year-old patient to lose some of her ability to taste. The jury, made up mostly of people under 30 years old, awarded $3 million. By any measure this is a substantial award for dental malpractice. Based on my experience, a 1990 jury would have awarded much less. What the defense attorneys in that case failed to appreciate was that young people, most of whom identify in some way by what they eat, post photos of food on social media, and have lived in a time when chef shows rule reality television and “foodies” are blogging about the latest restaurant hot spot. To them $3 million might not seem like a substantial amount of money for the partial loss of their taste buds.
While the plaintiff was the beneficiary of the defense attorney’s cultural tone deafness, this example raises myriad issues for trial attorneys. In my view it is our professional obligation to educate ourselves to understand and appreciate the views, experiences and attitudes of prospective jurors. Just as the rules of professional responsibility for lawyers added keeping “abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology” as an element of maintaining competence, we must keep abreast of cultural and technological shifts that impact a juror’s willingness to award substantial sums to the plaintiff when it is warranted. It’s a modern application of the classic adage: know your audience. After all, the youthful juror could just as easily fail to appreciate fair compensation in another type of case.
Around this time last year I was preparing for a trip to Australia and New Zealand looking forward to checking a few things off of my Bucket List, including Bungy Jumping at the world’s oldest commercial site in New Zealand, Kawarau Bridge. Notably, New Zealand’s recent tragedy is a keen and heartbreaking example of bravery conquering fear. I was fortunate to have been there in happier times.
I like to think of myself as brave and fearless but when you think about it, bravery is realized and cultivated in the face of fear. So maybe fearlessness isn’t always the goal. Sometimes fear is a good thing preventing us from engaging in unreasonably risky behavior. In my work I see bravery all of the time. People who are facing their worst fears every day: permanent disability or scarring, the rest of their lives without a loved one. It makes me want to channel their bravery as I champion their cause through the challenges of our civil litigation system. It’s here where my being fearless can be a great asset.
When I encounter narrow thinking or rigid approaches to the law by judges or opposing counsel, I am emboldened to develop creative arguments or devise innovative legal theories on behalf of my clients. I have no fear about stepping into a courtroom and passionately advancing my plaintiff’s case even if it’s a new concept or unconventional approach. I have faced formidable obstacles, including the derision of judges, defense counsel and juries, but I am undeterred. Because, in my experience, courage coupled with fierce analytical thought and zeal pays off. This openness and creative thinking has compelled me to take many cases declined by successful attorneys in which I obtained multimillion dollar settlements or verdicts.
I have defeated motions that threaten to end my client’s case on dismissal or summary judgment, and I have convinced opponents that my case will win the day with a jury. Victory in such battles can be the difference between no recovery or full and fair compensation for my clients. If a handsome award for an injured victim is my reward, I will take a giant leap into my fears every day—hand me the bungy cord.
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.
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.
I’ve had a lot of cases over the years, mostly good and some that turned out not so good. When I take a case I am committed 100% and ready, willing and able to take it to trial—and my colleagues on both sides of the aisle know it. Having built a reputation for tenacity and even ferocity, I put it to work for the benefit of my clients.
Very few cases are so cut and dry that either party or their counsel can coast through the litigation or ride an early assessment regarding liability to an inexpensive and early disposition. Practically speaking cases are not resolved based solely on their merit. Many factors weigh in including the parties involved and their counsel, as well as the jurisdiction where the case is filed, some are less friendly than others.
Defense attorneys and those who pay their hourly bills (usually insurance companies) assess cases based also on the reputation of plaintiff’s counsel, i.e. his success rate at trial or in garnering large settlements, or her willingness to see the case through to trial or even to appeal an adverse decision when warranted. These qualities make an opponent formidable which sets the stage to negotiate favorable settlements.
A formidable opponent tips the scales in the plaintiff’s favor when the defendant conducts a cost benefit analysis. Does the defendant want to incur the significant expense of going to trial and risk losing, or even if they win, slogging through a costly appeal? In many cases, faced with such strident and vigorous opposition, the defense will value the case at a higher amount and manage the expectations of the defendant party in anticipation of an unfavorable result.
Maintaining a rigorous and unyielding posture throughout the litigation consistent with a tenacious reputation puts the plaintiff in the best posture for settlement. I have often advanced creative and strenuous legal arguments to overcome motions to dismiss or for summary judgment and convinced the judge to allow the jury to decide the case.
Once we’ve overcome such obstacles to getting a trial, we are now in a position to negotiate an advantageous settlement. And if not, then that’s what trials are for and that’s why I’m a trial lawyer.
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.
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.
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.