Cal Biz Lit

Tort Plaintiffs Be Warned: Contra Costa and Santa Clara Counties Are Not Friendly Places

    To help you get your weekend off to a rousing start, here's a bunch of statistics.  Just what you were hoping for, right?

    About a year ago, Cal Biz Lit reported here on the U.S. Department of Justice's 2005 survey of state court civil jury and bench trials.  The link to that report is no longer  alive.  The report was revised in April, 2009, and is now available here.

    In the earlier post, CBL expressed surprise at the small number of cases tried to completion in some California courts.  Santa Clara County, with 89 judges or commissioners, tried a grand total of 54 cases to verdict or judgment (that's .606 trials per judicial officer). Contra Costa, Northern California's largest suburban county with over a million residents and 59 judges, had 29 civil trials go to verdict or judgment, about half a trial per judicial officer.

    Well, now the DOB has massaged the same data some more in a new report
available here, and it looks like some plaintiffs will wish fewer tort cases went to verdict.  'Cuz the outcomes weren't so hot for them. Nationwide in 2005, plaintiffs won their tort trials about half the time.  The median tort damage award when they won was $31,000.  But in Contra Costa County, with twelve tort cases tried to conclusion in 2005, plaintiffs won twice -- that's 12%.  And while the win / loss record in Santa Clara County was near the national norm, the median damage award in the fourteen cases the plaintiffs won was a piddling $19,000.  That's right, folks, Santa Clara County jurors in 2005 awarded a thumping total of about $266,000 in tort damages to all plaintiffs against all defendants!

    Here are the plaintiff win rates in some of the other major California counties:  Los Angeles, 42.8%;  Alameda, 56.2%;  San Francisco, 53.2%;  Orange, 41.9%.  This is not particularly surprising.

    Nor are the average plaintiff verdict amounts much of a surprise:  Alameda is right near the national average, $30,000.  San Francisco is higher at $43,000.  And Los Angeles County, the largest in the state, had an average plaintiff tort verdict in 58 cases of $106,000.  CBL suspects this may be heavily skewed by a number of eight figure asbestos verdicts.

    And speaking of asbestos, the DOJ reports that out of 16,359 nation-wide state court tort trials in 2005, 2.2% were product liability trials, and about one in four of those were asbestos cases.  On the other hand, 58% were automobile accident cases -- obviously the largest number by far.  A distant second was medical malpractice, at about 15%.

   

Now, That's A Big Verdict

    Per today's Law.com:

A Santa Clara, Calif., jury awarded $49 million in damages Monday to a college student who was on his way to a camping trip when two trucks collided and one struck the car he was riding in, causing him traumatic brain injuries.

  

  Law.com also owns Verdict Search, and reports that its search shows this is the biggest single plaintiff personal injury verdict in California in the last ten years.  Law.com also quotes a plaintiff attorney (who was not involved in the case" to the effect that "the Santa Clara jury pool is known to be conservative."  (That has not, incidentally, been what we have seen over the years.  Jurors in Santa Clara County are hard for a plaintiff to hoodwink on liability, but once they find liability, they can award large damages in large cases).

    Attorney Randall Scarlett, who represented the plaintiff, says on his web site that the jury broke down the verdict amounts as follows:  $3.4 million in past medical expenses, $27.6 million in future medical expenses, $4.5 million for future lost wages, and $13.5 million in general damages.  The jury found the State of California --which had previously settled for $10 million -- 5% at fault.

$13.8 Million Punitive Award Against Philip Morris

    So here's the story:  Betty Bullock smoked Benson & Hedges and Marlboros for 45 years, and was diagnosed with lung cancer.  She sued Altria / Philip Morris, and in 2002, her case went to trial, resulting in a compensatory award of a relatively pedestrian $850,000 and a punitive jury award of a mere $28 billion.  Not surprisingly, the trial court found that a tad excessive, and reduced the punitives to $28 million.  The court of appeal later took the entire punitive award away on the ground of erroneous jury instruction.  Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655.

    By that time, Ms. Bullock has passed on, and her daughter took the case to trial again this month, on the amount of punitive damages only.  This week the jury came in with a relatively piddling $13.8 million in punitives.  The Bloomberg report is here, the AP here.

    But I've got to love the quotes from the two attorneys.  From a stunned and disappointed plaintiff attorney Michael Piuze, we have the following:

I liked it better when it was $28 billion," said Piuze, who represented Betty Bullock after she filed the lawsuit. "She wanted me to beat the crap out of Philip Morris, and we did it once.

And from Shook Hardy's Frank Kelly, a model of equanimity: 

The number is larger than what one would have wanted or expected . . .We’ll take a hard look at it.

    California Punitive Damages, An Exemplary Blog, covers the entire history of the case in a set of posts here. 

Boomer Verdicts for July

   

Riverside County:  Jury tags K-Mart in an age discrimination case for $916,000 compensatory damages on Tuesday and $25 million in punitives on Wednesday -- more than twice what the plaintiff attorneys asked for.  Media coverage here and here.  Sears (owner of K-Mart) considering post-trial motions.  Ya think there might be a State Farm v. Campbell argument?

   

Los Angeles County:  Five plaintiffs get defamation verdict totaling $370 million against founder of Guess Jeans.  Each plaintiff gets $69 million in compensatories and $5 mil in punitives.  Story here and here.

   

San Diego County:  $1.3 million elder neglect verdict (total of punitives and compensatories).

    San Francisco County:  Mesothelioma asbestos verdict for $3.4 million.

More on Removal -- Not Always Protection Against Big, Big Verdicts

   

I blogged last week on whether removal to Federal court was the best idea for defendants in product liability cases, the short version being, generally, yes.

    But it isn't a panacea.   Pierson v. Ford Motor Co., 3:06-cv-06503-PJH was a crash-worthiness case brought by bay area indie musician Dax Pierson, who was rendered a quadriplegic in a 2005 roll-over accident.  Ford dutifully removed the case.  The jury dutifully rendered its verdict against Ford last month for $18,349,391.

Modesto Perchloroethylene Verdict: Sometimes You Win, Sometimes You Lose, Sometimes You Win And You Lose

    And I guess sometimes it's all a matter of perspective.  There's been a five month mega-trial in SF Superior  in a groundwater pollution case filed by the City of Modesto (in California's central valley) against Dow Chemical, PPG Industries and others.  The jury apparently deliberated for a month.  And with yesterday's verdict, either the City of Modesto won or Dow and PPG won:

    Per the Modesto Bee:  San Francisco jury awards Modesto $18.3 million in lawsuit.

    On the other hand, there's Law.com:  Chemical Companies Cleared in Calif. Groundwater Pollution Case.

    Apparently, the $18.3 million is less than the settlements Modesto has already collected, and Dow and Modesto dispute whether those settlements will offset the verdict.  Per Law.com, Dow was celebrating:  "Dow spokesman Jarod Davis wrote in an e-mail that the company was "pleased" by the verdict and that Modesto had failed to prove most of its claims."  So was Modesto's attorney:  "There's no question, overall, that the plaintiffs have been successful in this case."

    Meanwhile,  the same Dow that was partying over at Law.com was preparing its appeal over at the Bee:  "Michigan-based Dow Chemical said it intends to appeal the award, which it must split with PPG Industries of Pittsburgh."  And back at Law.com, Modesto's lawyer said they were going to the Court of Appeal as well.

Nine Votes. That's Nine Votes. On Every Question.

    Unlike the federal courts, where verdicts must be unanimous, California courts require that in Civil cases, 3/4 of all jurors agree.  That's Code of Civil Procedure section 618.  In most cases of any consequence, we use "special verdicts" -- a series of questions for the jury to answer, usually ending with questions to be answered -- if necessary -- about damages.  After the verdict is announced in open court, either side can request that the jurors be individually polled, and if nine of them don't each agree with the verdict's answer to each of the questions, back to the room they go.  (It doesn't have to be the same nine for every question.)

    In complex cases with multiple causes of action, the special verdict can have many questions and go on for pages.  Drafting special verdict forms (and arguing them to the jury) is therefore very much an art form. 

    In order to avoid confusion, many trial judges give each juror a colored copy of the verdict form to fill out with his or her final vote, so that each will have a "cheat sheet" when polled.  Some of the more creative judges hand out "yes/no" paddles for the jurors to raise indicating their vote on each question.

    In the case of Keener v. Jeld-Wen (May 7, 2009) ___Cal.4th___ (S16430), decided last week by the Cal Supremes, the trial court messed up the polling, neglecting to poll one of the jurors on the verdict question apportioning liability between the parties.  Since the verdict was over $4 million, and the verdict apportioned 80% of the fault to the defendant, this was of more than academic interest to both sides.  And the defendant thought it worthwhile to discuss the significance with the Court of Appeal and then the Supremes.

    Too bad for the defendant, who should have discussed it with the trial judge.  And before the jury was sent home.  Per the Cal Supremes:  the verdict is presumed correct.  And if the irregularity isn't raised in time to correct it, the irregularity is waived.

Skadden Arps Asbestos Litigation Report

    Skadden has just issued a "Trends" report on asbestos litigation, which reports, not surprisingly, that California is one of the leading jurisdictions for these cases.  Skadden notes that nationwide, the number of filings peaked at 80,000 in 2002, and the numbers are down dramatically.  But the drop-off is almost all in non-impaired, less serious claims.  Mesothelioma and other cancer claims keep plugging along. 

    This one surprised me:  according to Skadden, there were only forty trials (by which they presumably mean trials to verdict) in 2008.  If that's true, it's an astonishingly small number, and kind of a counterpoint to other data, discussed here, indicating that the civil jury trial is becoming a relic of the past.  And 90% of the verdicts were for mesothelioma cases.

    And, wow, those verdicts:  according to Skadden, "The average mesothelioma jury verdict in 2008 was approximately $7 million."  (From what we've seen, the verdicts forming the high-end of that equation are coming from California.) 

    And, predictably, settlements continue to increase.  "It is not unusual for a claimant in a mesothelioma case to receive more than $2 million in settlement from the various defendants."  Since most settlements are confidential (at least in California), the evidence for this is likely anecdotal, but I don't doubt it for a minute.

    And who are those defendants?  In many instances, they are not companies who ever considered themselves to be in the asbestos business;  that well dried up long ago.  Instead, "Formerly peripheral defendants are seeing an increase in the amounts they are paying in settlement."

   

Another Welding Rod Defense Verdict

    Not too long ago, it looked as though welding rod litigation might be the next big thing in mass / toxic tort litigation.  There were thousands of claims, many in the federal MDL, in which plaintiffs claimed Parkinsonism and other neurological symptoms from exposure to welding products.

    The second one of these went to trial last month in Alameda Superior Court, Thomas v. Lincoln Electric Company (Case No. RG0722122), and as with the first one, the jury came back -- yesterday -- with a defense verdict.

Why We On The Defense Side Like Removal Jurisdiction

    The latest California Verdict Search (reports available in paper version only) reports a defense verdict in the United States District Court for the Southern District of California (that's San Diego) in a case called Wawanesa General Insurance Company v. Applica Consumer Products, Inc.  The case is not one of great consequence -- a fire subrogation case involving a Black & Decker toaster, with about $266,000 at stake. 

    But the interesting thing is the report that

the court found that the fire experts retained by Wawanesa committed a spoliation of evidence by failing to retain other potential causes of the fire (the stove and appliances) for inspection by Applica and causing further damage to the Applica toaster oven by shipping the oven via UPS prior to allowing a joint inspection.  The jury was instructed that this destroyed evidence would have been favorable to Applica.

        This is the kind of sanction we are much, much more likely to see in Federal Court than in California state court.  You can see the defendant's two briefs on the spoliation issue here and here.  The proposed jury instruction (which the court evidently gave) is here.  You may not be surprised to learn that the jury deliberated 22 minutes before returning its defense verdict.  Maybe it was a long walk to the jury room.