A quick thought on jury size

I recently had a Philadelphia judge ask me why, as a Plaintiffs’ attorney, I would want a twelve person jury instead of an eight person jury. His reasoning was that, with a twelve person jury, I would have to convince more people in order to win the case.

I like a twelve person jury for a variety of reasons. One of them is something that I haven’t seen discussed much, so I am mentioning it here.

Starting with a request for a twelve person jury gives more flexibility when scheduling witnesses. In Philadelphia, with sometimes only 24 hours’ notice of trial, it can be near impossible to get all witnesses to come in live when needed. The amount of time taken by jury selection can make a big difference in order of witnesses and whether testimony will be live. If I enter jury selection with a request for a twelve person jury, I can try to stipulate to a lower number of jurors or strikes during selection if I want it to move faster. If I enter with a request for eight jurors, I am stuck with that number and can’t later stipulate to a higher number if I want jury selection to take longer.

TOP 10 under 40? Nope

I recently received a letter from the National Academy of Personal Injury Attorneys informing me that, upon payment of a $300 “Award Administration Fee,” I will be allowed to accept a “TOP 10 Under 40 Attorney Award for the state of Pennsylvania.” My letter informs me that the National Academy of Personal Injury Attorneys “was established in 2013 with the primary goal of discovering and recognizing the top 10 Personal Injury attorneys in each state for their hard work.”

Unsurprisingly, these awards are bullshit and usually the letter goes right to the trash. I’m writing about this one because I noticed something funny when I went to the website for the National Academy of Personal Injury Attorneys. As of my writing, twenty four attorneys have the “TOP 10 Under 40” award for Pennsylvania. Congratulations to the winners.

Response to Motion to Bifurcate

I thought I’d put up this portion of my response to a last minute defense motion to bifurcate a week long premises liability trial.

a. Because the issues of damages and liability are not completely separate, bifurcation is inappropriate.

“[T]he decision to bifurcate should only be made after the careful consideration of the trial judge. In determining whether to bifurcate a trial, the trial judge should be alert to the danger that evidence relevant to both issues may be offered at only one-half of the trial. This hazard necessitates the determination that the issues of liability and damages are totally independent prior to bifurcation.” Stevenson v. General Motors Corporation, 513 Pa. 411, 422 (1986) (emphasis added). It is important to avoid piecemeal litigation, particularly in personal injury cases, where issues of liability and damages are typically intertwined. Id. (quoting Brown v. General Motors Corp., 67 Wash.2d 278, 282 (1965)). Bifurcation is inappropriate when witnesses who testify to liability would also testify to damages. Doeblers’s Pa. Hybrids, Inc. v. Doebler, 2006 U.S. Dist. LEXIS 85488, 5-6 (MD Pa. 2006).

In the present case, both Plaintiff and Ms. [Witness] will testify extensively to issues regarding both liability and damages. Ms. [Witness] is currently employed and any attempt to divide her testimony between issues of liability and damages would impose an unnecessary burden on her. Because of the interwoven nature of liability and damage issues in this case, bifurcation is inappropriate.

b. Because depositions of medical experts have already been taken, bifurcation is inappropriate.

One main justification for bifurcation is to avoid the expense of preparing the damages portion of the case prior to a liability determination. Stevenson v. General Motors Corporation, 513 Pa. at 415-416.

In the present case, Defendants waited until after Plaintiff’s medical depositions were completed, and one of Defendants’ medical depositions was completed, to file the present motion to bifurcate. There was no reason to wait to file the motion until after the expense of taking this trial testimony was incurred. Because significant expenses for preparation of the damages portion of the case have already been incurred, bifurcation is inapprorpriate.

c. There is nothing unusually complex about this case that would necessitate bifurcation.

Bifurcation is ordered to avoid prejudice and simplify issues. Pa.R.C.P. 212. Bifurcation is typically ordered in unusually complex cases. See Stevenson v. General Motors Corporation, 513 Pa. 411 (1987) (in which the liability portion of trial consumed nine days and the damages portion consumed twenty-three days); Coleman v. Philadelphia Newspapers, Inc., 570 A.2d 552, 553 (Pa.Super. 1990) (in which trial lasted twenty-three days); and Kenrich Athletic Club v. 19th & Sansom Corp., 97 A.2d 865 (Pa.Cmwlth. 2014)(in which the “case consisted of three separate actions; two of which were listed for non-jury trials and one jury matter where monetary damages were sought as relief”).

In the present case, both Defendants stated in their pretrial memorandum that trial would take no longer than eight days and there were no unusual legal issues. No defendant has stated why they feel testimony on damages in this case would prejudice or taint the jury. Because this case involves no unusual legal or factual issues, bifurcation is inappropriate.

Don’t believe the headlines when it comes to personal injury verdicts.

From yesterday’s Legal Intelligencer, we get the following headline:

Delco Jury Awards $5.4M to Brain-Damaged Cyclist.

Anyone reading that headline would assume this was a jackpot for the plaintiff. However, from the third paragraph of the article, we get this:

“The state government was the only defendant at trial. Although state law caps recovery for civil damages against state agencies at $250,000, [Plaintiffs’ attorney Thomas] Sacchetta said the total recovery from Pennsylvania will be $500,000 since both [the victim and his wife] will recover the maximum $250,000 for their claims.”

Claims against the government, whether it be federal, state, or local, are subject to strict restrictions. In Pennsylvania, claims against state agencies have a damages cap of $250,000, and claims against local agencies have a damages cap of $500,000. Despite this, newspaper headlines often make it appear that a plaintiff will recover every penny of the jury award. This was particularly noticeable in the coverage of the 2011 Bucks County verdict of $14 million against Pennsbury School District for a girl who lost her leg in a bus incident. The headlines made it appear that the victim would receive $14 million. In reality, her damages were capped at $500,000.

Why does it matter? In the debate surrounding tort reform, people are often under the impression that runaway juries are handing out millions of dollars for every stubbed toe. They are unaware that the headlines do not tell the whole story regarding the actual amounts paid out. Tort reform is already in effect. The question is not whether we will pass tort reform legislation, it is whether we will take the already strict tort reform laws and, at the urging of insurance companies and big businesses, add to them to make it even more difficult for victims to be compensated for their injuries.

Don’t expect tort reform to lower healthcare costs.

In his speech last night, President Trump made the following statement:

“[W]e should implement legal reforms that protect patients and doctors from unnecessary costs that drive up the price of insurance and work to bring down the artificially high price of drugs and bring them down immediately.”

Given the position of Republicans on the issue, it is safe to assume that the “legal reforms” to which he refers are some type of tort reform that would limit the ability of victims to recover for negligence of physicians. Many people, perhaps even the President, are not aware that medical malpractice tort reform has been in effect in Pennsylvania for about fifteen years, and has already drastically lowered the number of lawsuits and verdicts. For example, the number of Pennsylvania medical malpractice jury verdicts hit a fifteen year low in 2015. The number of medical malpractice lawsuits now is about half of what it was in the late 1990s and early 2000s.

Despite the drastic impact of these reforms and those in other states, there has not been a corresponding decline in healthcare costs or insurance premiums. It would therefore be surprising if any federal tort reform acted to reduce “unnecessary costs that drive up the price of insurance.”

Some basic Pennsylvania pleading rules

Below is a list of Pennsylvania pleading rules that I send to the law clerks in our office. It is a good list to review whenever filing a document.

Pa.R.C.P. 204.1 provides formatting rules. Documents must be double spaced. This is a rule that is often broken.

Pa.R.C.P. 1007.1 is the rule on demanding a jury trial. All complaints should have a demand for a jury trial in the caption. Further, some counties (like Delaware) require a specific request for twelve jurors. If you don’t file it, you get eight. I’ve noticed that some defense counsel routinely file an entry of appearance with a specific demand for a jury trial of twelve with two alternates. This is probably the safest way to make sure you have the jury rules covered regardless of the county.

Pa.R.C.P. 1018 is the rule on captions.

Pa.R.C.P. 1018.1 is the rule on Notices to Defend. Note that some counties (like Montgomery) automatically produce a Notice to Defend when you file electronically, while other (like Philadelphia) do not.

Pa.R.C.P. 1019 is the rule on specificity in pleadings. You need to be specific enough that the defendant can respond and prepare a defense. You shouldn’t be too specific about irrelevant details. The client will sign a verification to the complaint. (Pa.R.C.P. 1024). If the specific, irrelevant details are later proved to be incorrect, the client can be cross-examined on the inconsistency.

If there is more than one defendant, make sure, in the “wherefore” clause, to plead that they are jointly and severally liable. This is important for recovery and sometimes for venue. (Pa.R.C.P. 1006(c)(1)).

Lawsuits are hard. Don’t presume you have one.

A man named Ken Walton recently wrote a facebook post that gained a great deal of attention. He alleges that, due to the fact that the rental car he was driving had its license plate stolen, he and his young daughter were pulled over. An officer pointed his gun at Mr. Walton, ordered him out of the car, threatened to shoot him, handcuffed him, and placed him in the police vehicle. Mr. Walton was eventually let go after it was learned he had done nothing wrong.

In his post, Mr. Walton writes, “Will I sue? I doubt it. I don’t want money from this (I can afford to send my daughter to counseling) and anything a settlement would generate would be trivial to me, and not worth the time it steals from my life.”

Mr Walton’s post got a great deal of attention. As of today, there are over three thousand comments to Mr. Walton’s post. For the purposes of this post, there are a couple of things to note from those comments. First, there are a great number of people encouraging him to file a lawsuit. In both the comments to the post and the post itself, there seems to be a presumption that a lawsuit would be successful. Second, many of the people encouraging him to file a lawsuit instruct him to find a lawyer to do it pro bono or to use GoFundMe to fund the lawsuit.

This post brings to my mind a few things that I’ve been thinking about recently regarding how lawsuits are evaluated and decided.

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What is “regularly conduct[ing] business” for the purposes of venue in Pennsylvania?

When filing a lawsuit in Pennsylvania state court, it is important to consider in what county to file the lawsuit. Under the Pennsylvania Rules of Civil Procedure (Rule 2179), a lawsuit against a business can be brought in a county where a corporation (or similar entity) “regularly conducts business.” Whether a corporation regularly conducts business in a specific county is often a subject of hot dispute. Below is a portion of a brief that I recently filed on behalf of a plaintiff on this issue.

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Audit raises concerns about nursing home staffing levels.

A recent audit (report here) by the Pennsylvania Auditor General raises serious concerns about nursing home operation in Pennsylvania. The audit covered the period of January 1, 2014 through October 31, 2015. The report broke the key issues up into three areas of focus.

In the first (and most important) area of focus, the audit revealed that the Department of Health did not have sufficient policies and procedures to ensure that nursing homes provided the required 2.7 hours of direct patient care per day. The hours of direct patient care were often self-reported and not backed-up of adequate supporting documentation. In addition, the audit revealed that the minimum number of 2.7 hours might be too low.

The second area of focus deals with the Department of Health’s handling of complaints. The Department has a policy of disregarding anonymous complaint about nursing homes. The audit also found deficiencies in the Departments documentation and prioritization practices. These practices can lead to a mishandling or rejection of serious and urgent complaints.

The third area of focus deals with imposition of sanctions by the Department. The audit revealed that, in cases where the department administered education, rather than fines, to facilities that had severe violations, the decision making process was not adequately documented.

These findings should alarm anyone with a loved one in a nursing home. It is important to keep in mind that any legislation limiting the ability to bring private lawsuits against nursing homes will only make this problem worse. It is therefore important to strongly protect the rights of individuals to bring lawsuits, allowing them to recover adequate damages and perform their own investigations, when nursing home abuse occurs.

Medical Malpractice Verdicts at 15 Year Low

There were 101 medical malpractice jury verdicts in Pennsylvania in 2015. Seventy-nine of these verdicts were defense verdicts. The number of medical malpractice verdicts is a fifteen year low. Between 2000 and 2002, there was an average of 326 medical malpractice jury verdicts per year.

Further, the total number of medical malpractice filings in 2015 was 1,519, which is down from an average of 2,733 between 2000 and 2002. The reduction in verdicts and total filings was caused by the 2002 MCare Act, which made it more difficult to file medical malpractice actions in Pennsylvania.

In discussions about tort reform, it is important to know these numbers, which show that tort reform is already in effect and drastically reducing the number of medical malpractice lawsuits in Pennsylvania.The reduction in lawsuits, however, has not corresponded with a reduction in medical costs or insurance premiums.