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.”