The Fall of Torts in Massachusetts
A Look At Verdicts And Settlements From The Last Three Years Reveals A Steady Decline In Recoveries
By JOHN O. CUNNINGHAM
While the multi-million-dollar tort verdict is hardly an extinct beast in Massachusetts, it certainly seems to be in declining health.
According to a study of cases reported to Lawyers Weekly over the last three years, verdicts and settlements in tort cases are steadily dropping.
Douglas K. Sheff of Boston, president of the Massachusetts Academy of Trial Attorneys, says the Lawyers Weekly study results are consistent with the continuing trend he sees in Massachusetts.
“You can still get a big verdict, but every year for several years, fewer tort cases have made it to court,” he says. “This means fewer verdicts, yielding a lower median on [reported victories]. Also, the insurance companies are pressing the median settlement down with fewer, lower offers.”
Sheff adds that “juries are also becoming more cynical and suspicious.”
When it comes to which cases pay out more than others, in Massachusetts medical malpractice is still king, far outdistancing either auto-accident cases or generic tort matters.
The median reported verdict for med-mal over the last three years, close to $5 million, dwarfs median numbers for other categories. (See chart of median verdicts.)
Patrick T. Jones of Boston has reported several million-dollar verdicts and settlements, and handles many medical-malpractice, products liability and construction accident claims.
Reports Jones: “Medical-malpractice cases have greater [average] values for several reasons. The policy limits are bigger, the consequences of malpractice can be horrendous and insurers routinely deny smaller claims.”
The numbers also demonstrate that some lawyers are still obtaining million-dollar verdicts and settlements, and a select group of those lawyers earn a high percentage of those awards.
Richard P. Campbell of Boston has tried cases around the country involving automobiles, products liability and medical malpractice. He represents most of the major auto manufacturers, and is not surprised that some lawyers are repeat winners.
“The message is that lawyers are referring bigger complex cases to those who can handle them,” Campbell says. “It is a mistake to take on a major case against a true specialist. Complex trials are difficult, expensive and risky. Lawyers can not dabble in complex trial work.” (See sidebar on “ The Elite Few.”)
What follows is an analysis of the major types of tort cases Lawyers Weekly reviewed using the recent numbers. While nuances exist in each category, the theme is consistent: a steady drop in plaintiff victories.
Medical Malpractice
“Medical-malpractice cases are among the most difficult and complex cases you can handle,” says T. Mark Herlihy of Boston.
Herlihy and his father, John J.C. Herlihy, try personal-injury and med-mal cases, and they’ve earned some of those million-dollar recoveries.
“You can often spend two years in discovery and take more than four years to get to trial,” says the younger Herlihy. “We also have two full-time nurses on our staff and we work with a lot of outside experts. The nurses help review records, and put them together in a way that experts like. They also help us understand the medical histories, procedures and research.”
Jones says med-mal recoveries have higher averages in part because of the complexity and expense.
“You must have a quarter-million in damages sometimes just to take the case,” he said. “It requires a huge investment and tremendous hours of work, and the insurance companies know that so they just deny $50,000 claims. A sponge left in a body cavity, unless it does major harm, is just not a worthwhile case.”
Jones also adds that “in medical-malpractice claims, $10 million insurance policies are not unusual.”
Sheff points out that the injuries are typically worse in such cases too.
“You don’t see a lot of soft-tissue injuries in med-mal cases,” he says. “If something goes wrong, it’s often disastrous.” The numbers support the claims. Over 59 percent of the million-dollar verdicts and settlements for the major tort claims involved medical malpractice.
All of the experts agree, however, that verdicts are hard to get. They acknowledge that 95 percent of the verdicts favor defendants.
Jones says that is partly why the Lawyers Weekly study shows few verdicts and many settlements in this area.
“Also, insurance companies know when to settle,” says Jones. “They have well-studied ranges of values for different cases. They settle for good money [for a good case] because they have studied the risk of trial carefully.”
All of the experts note that the study numbers are high because they represent a sampling of the best verdicts that attorneys choose to report. Indeed, nationwide statistics from Jury Verdict Research show that medical-malpractice verdicts in 1999 had an average value of $800,000.
Autos And Torts
The experts also generally agree that the study numbers for motor-vehicle negligence and tort cases are high, but accurately reflect a downward trend in median results. (See charts for verdicts and settlements by case type.)
The average verdict in Massachusetts is closer to the JVR nationwide average for negligence cases of $40,109.
“With auto cases, you can take them if there is liability because they are on a fast track, they will get to trial in one or two years, and they are not as expensive to try,” says Herlihy, adding that “there are many more small cases that you can afford to try.”
Thomas J. Lynch of Boston, former chairman of the Tort Committee of the Boston Bar Association, has represented both plaintiffs and defendants in medical-practice, tort and auto cases.
He agrees with Herlihy and says that “a $50,000 to $100,000 auto-accident case is the bread-and-butter of many attorneys.”
Lynch also finds the downward trend in median settlements that the study reflects noteworthy.
“Insurance companies are taking a hard line on valuing damages, and they can do it. There are more defense verdicts [over time] and there are more lawyers taking less to settle, so the values are lower,” he says. “A severely herniated disc that was valued at $50,000 might now be $20,000.”
Sheff agrees, adding that “most auto cases involve defendants with statutory minimum coverages, so you don’t have much to recover. Many drivers have no coverage at all.”
Lynch also sees a coverage problem and adds that “some of the top 10 verdicts [in auto and tort] are uncollectible. I know those cases involved [defendants] with little or no coverage or assets.”
According to Sheff, “Studies also show damage amounts are going down and frequency of recovery is going down.”
The MATA president feels the downward median trends are a function of jury pools that are increasingly “skeptical and suspicious [due to] public relation campaigns by the insurance companies.”
Campbell says he also sees more defense verdicts and lower awards, but has a different perspective.
“Massachusetts jurors are just more suspecting,” he says. “They are thoughtful and conservative, despite the politics of the state.”
What’s more, Campbell says, auto product safety standards and better engineering have made safer cars.
Both Campbell and Sheff agree that the study numbers for general negligence and tort are not as revealing because the category is broad, but they acknowledged the reality of the same downward trend in verdicts and settlements.
Behind The Other Numbers
Some experts are surprised by the relative valuation of employment law cases, which sport an average for reported verdicts over twice as large as premises liability cases.
But Jonathan J. Margolis of Boston is not surprised. Margolis has tried personal-injury and employment cases, and won a multi-million-dollar age discrimination verdict.
“Many of the weaker employment cases are screened out on summary judgment and most plaintiffs lose at or before trial,” Margolis observes. “The cases that do survive often involve egregious harassment or discrimination.”
Margolis adds that “another issue is the number of settlements under confidentiality agreements.”
He explains that this nuance accounts for the very few employment law settlements reported to Lawyers Weekly.
Mediation and arbitration are ineffective, he suggests, “because there are few guidelines to what a case is worth. Bigger verdicts are often due to [unrealistically] low settlement offers.”
Margolis notes that his biggest verdict came from a case that was improperly valued.
Campbell thinks there is another reason for high employment verdicts.
“Not every juror has been in an accident, but every single juror has probably been in a bad work environment somewhere. Any employee who survives the maze to trial has probably got a sympathetic jury,” he says.
Campbell also notes the absence of products liability cases in the study. Only 17 such verdict reports appeared in the last three years and there were not many more settlement reports, so the data is not summarized in the study.
Campbell’s own experience verifies the drop in cases as well.
“It is getting harder to win products cases and they are very costly to try. They are now more expensive than med-mal cases, so there are fewer of them,” he says.
Sheff agrees, pointing to cases where plaintiffs’ lawyers have had to spend as much as a half-million dollars in costs just to get to trial.
Sheff adds that “the IRS does not allow deductions [for such costs] until a case is concluded.”
The study further shows that the large reported verdicts are scattered across various counties evenly.
Herlihy says this just shows “you can still win the big verdict anywhere in any county.”
Jones agrees, noting that “the big ticket numbers can register anywhere.”
Campbell’s explanation is that big verdict cases involve “serious facts where something got to the jury.”
While he recognizes some counties are more conservative, he says “if the jury does cross the Rubicon in a [complex] case, then the damages will be big anywhere.”
But most experts think the big story behind the numbers relates to the consistent downward trend in median verdict and settlement values for all of the categories.
“Groups like the Manhattan Institute have convinced people that lawsuits are frivolous and proliferating,” Sheff says. “The truth is that the number of claims is going down.”
Jones agrees.
“The volume of cases is down everywhere, and some people are convinced the jury system is not working. If you report a big verdict in the mainstream press, it penalizes you,” he says.
Both Lynch and Jones point to the infamous McDonald’s coffee case as a press disaster. They point out that the verdict was dramatically reduced on appeal and settled for even less.
“But the facts were much worse than people think,” says Lynch.
Lynch feels many jurors “now see pain and suffering as exaggerations. They think big verdicts are like lottery tickets.
”Some attorneys feel this is particularly true of the upcoming generation of jurors.
“When voir dire is allowed in cases we try, hands shoot up in the room when jurors are asked about frivolous suits and exaggerated damages,” Herlihy says. “We also ask if they think verdicts are driving up insurance costs, and many do.”
According to Lynch, “Jurors also believe doctors are leaving this state or rendering care differently for fear of malpractice suits, and this affects their decision.”
Sheff thinks there is only one way to weed out jurors with prejudice against the plaintiffs.“We have to have a meaningful voir dire,” he says.
Leo V. Boyle of Boston, one of the leading trial attorneys in the state, agrees with Sheff.
“Most states allow significant voir dire,” he says. “Without voir dire, we are often just ‘hunching it out’ with peremptory challenges.”
“Nearly every state in the country has some meaningful voir dire, except for Massachusetts,” adds Sheff, pointing to the U.S. Department of Justice study as evidence of the effect of voir dire.
That study shows that several Massachusetts counties have the lowest rates of plaintiff verdicts in the country. “Nothing more than the absence of voir dire distinguishes our state from others and could explain such anomalous data,” he says.
Sheff and other experts from the plaintiffs’ bar maintain that the downward trend in verdicts and settlements is directly related to attitudes in the jury pool and the lack of a tool to weed them out. MATA has proposed legislation to guarantee an hour of voir dire for each party. Whether Sheff and MATA can effect a change in voir dire by legislation remains to be seen.
EDITOR’S NOTE: The numbers compiled for this story reflect only those cases reported to or compiled by Lawyers Weekly. This is not a scientific study. The verdict numbers reflect the full amount awarded by juries, including interest.
