Sobering Information for Plaintiffs Thinking About Going to Trial
ere is an article from Massachusetts Lawyers Weekly about how the vast majority of personal injury plaintiffs are losing at trial in Massachusetts. Keep in mind the old adage, "the good cases settle, and the bad cases go to trial" while you read the article. Here is the article:
Odds against tort plaintiffs in Massachusetts
Success at trial poor, especially in suburbs
Published: June 14, 2010
Eight years later, James W. Gilden remembers the day he fell down the steps at the Dedham Probate & Family Court like it was yesterday.
The 70-year-old divorce lawyer from Sharon, a regular at the courthouse for more than four decades, lost his balance on the slippery marble floor and tumbled down several flights of stairs before slamming onto the landing below.
Gilden would go on to file a negligence suit in Norfolk Superior Court against the Trial Court and its chief justice for administration and management, Robert A. Mulligan.
"The steps were concave and slanted a little bit forward," Gilden recently recalled of the 2002 accident. "At a minimum, they should've put up some kind of warning. After that happened to me, they put no-slip strips on the stairs, but the trial judge refused to allow us to even bring that up in front of the jury."
Gilden said that ruling by Judge Thomas A. Connors dashed any chance he had of holding the court accountable for the injuries to his knee, which required arthroscopic surgery and months of painful rehabilitation.
But practitioners claim there was something else at play when the jury returned a defense verdict in the case last April: a deep-seated anti-plaintiffs' bias in Massachusetts.
In fact, a review by Lawyers Weekly of the civil verdicts rendered in Superior Court in 2009 shows that the deck is heavily stacked against tort plaintiffs, particularly those who go to trial in Norfolk County and other suburban communities. And the numbers are even more dismal for plaintiffs in medical-malpractice cases (see sidebar on page 27).
According to the statistics, only five of the 35 personal injury verdicts returned in Norfolk County in 2009 favored plaintiffs. The county's 14 percent success rate was 22 percentage points lower than Essex County, which had the highest rate of plaintiffs' verdicts, and 12 points behind the statewide average of 26 percent.
"A plaintiff's verdict is so rare here that when we have one, it's something people really take note of," Norfolk Superior Court Regional Administrative Justice Janet L. Sanders said. "Norfolk has traditionally been pro-defense, but there seems to be a more pronounced trend in the last few years, particularly the last two, where the numbers of plaintiffs' verdicts have dropped precipitously."
Superior Court Judge Patrick F. Brady, who regularly sits in Norfolk County, concurs with Sanders.
"This is certainly not the golden age of torts," he said.
‘A hard battle'
Lawyers Weekly collected the numbers for this story by running every Superior Court case tried in 2009 through the state's Trial Court Information Center database. Of those 700-plus cases, any verdict for the plaintiff, regardless of the amount of money awarded, was considered a plaintiff's win.
The only region in Massachusetts with a lower success rate than Norfolk County was the Cape and Islands, which saw eight of its nine tort trials decided in favor of defendants.
Brady, who specialized in products liability defense at the Boston law firm of Nutter, McClennen & Fish prior to his appointment to the bench in 1989, keeps a log of every negligence case tried in his courtroom.
Unlike the method used by Lawyers Weekly, however, the judge defines a plaintiff's victory as a verdict in which the jury awards a dollar figure that exceeds the plaintiff's pre-trial settlement offer. (Such data is not available on the state's database.)
"To me, beating the offer is the true measure of whether someone wins or loses," Brady said. "Those numbers tell you that it's a hard battle for a plaintiff's lawyer in any case where the defendant presents some sort of plausible defense. The plaintiffs will hardly ever win by my definition of a win."
Of the 151 negligence trials Brady has presided over since 1993 when he first started keeping track, only 16 have resulted in plaintiffs' verdicts, he said. In Norfolk County, only seven of 69 ended in favor of plaintiffs. Of the 52 trials he has heard in Plymouth County, 49 – or 92 percent – were decided for the defense.
Because the likelihood of plaintiffs attaining success is so remote, Brady said, he has seen far fewer personal injury cases – especially those involving car accidents and slip and falls – go to trial over the past three or four years.
Since Norfolk County started tracking its results in 2006, the few cases decided for plaintiffs have generally resulted in miniscule monetary awards, Sanders said.
"Over a four-year period, we're talking about only a handful of cases that have been big verdicts, in the hundreds of thousands," she said. "The plaintiffs' bar has admitted to us that they only come to Norfolk if they have to for venue reasons. They're not avoiding us because of our court; they're avoiding us because of the low verdicts."
When a lawyer has the option of filing outside of Norfolk County, the decision is an easy one to make, according to Robert M. Higgins of Lubin & Meyer in Boston.
In fact, he said, any attorney who would willingly try a case in Dedham when alternative venue options exist – knowing how bleak the numbers are – would be committing malpractice.
"Generally, the belief is that the majority of big verdicts in Massachusetts come out of the larger cities," Higgins said. "The further you get into suburbs – the Dedhams, the Barnstables, the Plymouths – the perception is that you'll get a more conservative, pro-defendant jury pool than you will in places like Worcester, Springfield or Boston."
‘Same wasteland everywhere'
J. Michael Conley, who represented Gilden in his Superior Court case in Dedham, said while the news out of Norfolk County is dismal for plaintiffs' lawyers, it's not a whole lot better in other parts of the state.
"What we're seeing in Norfolk, which is an affluent suburban community, is a subset of what we're seeing statewide," he said. "It's the same wasteland everywhere you go."
Like most of the judges and attorneys interviewed by Lawyers Weekly, Conley struggled to explain the precise reasons for the bleak results. The Braintree lawyer said one factor is the pre-conceived beliefs that members of the venire bring to trial.
"There is a lot of sociology behind it, but one thing that is going on out there is that there is a huge amount of anti-plaintiff sentiment in the populous and therefore in the jury pool," he said. "I don't think you'll find plaintiffs' lawyers in love with jurors anywhere in Massachusetts these days."
Because Massachusetts is one of the few states in the country that does not allow a meaningful voir dire process, lawyers have difficulty weeding out troublesome jurors during empanelment, Conley said, calling it a "good day" if he can get a judge to ask potential jurors whether they believe they would be adversely affected by a plaintiff's verdict.
Judge Brady, who meets with jurors at the conclusion of each of his trials, said juries tend to be hard on personal injury plaintiffs, "figuring that they've got their back problems, too, and that this is another one of those McDonald's suits about hot coffee."
In motor vehicle cases, meanwhile, many jurors mistakenly believe that insurance premiums will be negatively impacted by a plaintiff's' verdict, Wilbraham lawyer Francis W. Bloom said. That perception has prompted Bloom to steer clear of soft-tissue cases, which he gladly tried a few years ago.
"You have an uphill battle before you even stand up because there is no way a juror with that kind of bias can possibly sit indifferent on your trial," he said. "There is an attitude among jurors, particularly with the economy being so tough, that if they have to struggle, why should they be generous with the plaintiff?"
Defense verdicts rule the day in med-mal trials
While it was no easy task for personal injury plaintiffs in Massachusetts to prevail at trial in 2009, it was nearly impossible for them to win medical-malpractice claims.
According to a Lawyers Weekly review of every Superior Court case tried last year, nearly 90 percent of the med-mal disputes that went to trial were decided in favor of doctors.
In Norfolk County, all 12 of the court's medical-malpractice trials ended with defense verdicts.
"I was appointed to the bench in 2001, and I have never presided over a medical-malpractice trial that resulted in a plaintiff's verdict," said Superior Court Judge Janet L. Sanders, who serves as Norfolk County's regional administrative justice.
Likewise, Superior Court Judge Patrick F. Brady, who has presided over 28 med-mal trials since 1993, said he has had only one trial result in a plaintiff's verdict that exceeded a defendant's settlement offer.
Jeffrey N. Catalano of Boston's Todd & Weld, a med-mal lawyer who secured one of only 11 plaintiffs' victories in the state in 2009, said the prospects are so poor that several attorneys have stopped handling them altogether.
"There has been a lot of public-relations money poured into misrepresentations about lawsuit abuse, health care costs going up, and doctors leaving the state," he said. "Unfortunately, a lot of it has been effective. There is real juror hostility toward patients and plaintiffs who choose to pursue these cases."
– David E. Frank