Are jury awards in greater Minnesota getting greater? Large verdicts put conventional wisdom in question

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1 Are jury awards in greater Minnesota getting greater? Large verdicts put conventional wisdom in question By Barbara L. Jones August 20, 2001 Reprinted with Permission of Minnesota Lawyer While lawyers in greater Minnesota often sing the praises of practice outside the Twin Cities, large jury verdicts are not among the advantages they cite. The conventional wisdom is that six- and seven-figure jury awards are much harder to come by in greater Minnesota - particularly in personal injury cases. However, several recent verdicts demonstrate that juries outside the Twin Cities area will award a large verdict under the right circumstances. Steele County juries recently handed down two multi-million-dollar verdicts to plaintiffs in wrongful death cases. And a St. Louis County jury recently awarded $500,000 in a case involving a soft-tissue injury. Some attorneys who spoke with Minnesota Lawyer believe there is a trend in greater Minnesota toward verdicts larger than those awarded in the past; other attorneys believe the value of a case has never really depended on the geography. Minneapolis attorneys John Sheehy and Michael Snyder recently won a verdict of $3,475,000 in Steele County for the wrongful death of a 53-year old man who was killed when a concrete door that had been installed by the defendant fell on him. The defense's highest settlement offer had been only $250,000. Prior to trial, the mediator advised Sheehy to settle because juries don't award big damages "south of the river." After admitting liability the day of trial, the defense argued to the jury that it should award only $125,000 for the man's death - a far cry for the more than $3 million the jury ultimately awarded. "People in rural areas are unfairly discriminated against because insurance companies are convinced juries won't pay - or at least because they convince the plaintiff that juries won't pay," Sheehy told Minnesota Lawyer. "Plaintiffs' lawyers are constantly being arm-twisted by defense lawyers, as if rural juries don't understand modern money. The reliance on the myth of the rural jury is wrong." Rochester attorney Paul Dahlberg earlier this year handled a case in Steele County that stemmed from the deaths of three people in an automobile accident. Dahlberg represented the three children of one of the decedents. The case was consolidated with the cases of three other plaintiffs with related claims and tried to a jury. The jury returned a total verdict of $4.69 million, including $1.1 million in economic damages and another $1.1 million in noneconomic damages for Dahlberg's clients.

2 Dahlberg's clients were the three children of a decedent mother. The verdict exceeds the insurance limits and a bad faith claim is pending, Dahlberg observed. The liability issues in the case played a big role in the inability of the parties to settle, according to Dahlberg. However, he also observed that the perception exists that plaintiffs won't see large dollars in cases in greater Minnesota because the juries aren't capable of understanding large losses or aren't used to awarding large dollar amounts. "Both those themes are floating around," he stated. "It depends on to whom you are talking. There's just a sense that the juries are conservative with money. The insurance carriers use [this argument] to drive lower settlements. They may not actually believe it. It takes verdicts like this to disabuse the idea." Don't show them the money Rochester attorney Jeffrey Hanson said that if defense lawyers and adjusters are telling lawyers that verdicts are lower outside the Twin Cities, it is because verdicts are lower. "In advocating your case, it's important to argue elements that are in your favor," he said. "Competent adjusters and defense attorneys let the plaintiffs know the verdict is likely to be lower in order to facilitate settlement. Every case is different, but all things being equal, jurors in rural areas will evaluate a case significantly lower." Rochester attorney Douglas Boese said the recent Steele County verdicts were surprising. Boese, who represents both plaintiffs and defendants, observed that the expectations of Twin Cities plaintiffs' lawyers who try cases outside of Minneapolis and St. Paul are typically too high. "We don't try to scare Twin Cities lawyers - we try to tell them [what cases are worth]," Boese said. Duluth attorney Robert Falsani said that for years juries in his area were "absolutely hostile" to plaintiffs. "We couldn't buy a verdict," he observed. Defense lawyers would tell plaintiffs' lawyers point blank that the juries were not going to award substantial damages - and they didn't, he added. However, Falsani has noticed a change in the air as of late. Falsani said that his office has had a string of good results in the northern part of the state. In fact, the results in these cases have been much better than the results that the firm has gotten in its Twin Cities verdicts, he added. Duluth defense attorney Michael Haag, who represents various insurance companies, disputes the notion that defense lawyers are arm-twisting to get lower settlements in areas outside the Twin Cities.

3 "I don't think there are very many lawyers who are intimidated by what insurance companies say," Haag observed. "Lawyers who do the work and are active [in the profession] have a pretty good idea what their cases are worth." On the other hand, Haag said that he assumes that sophisticated insurers take geography into account when evaluating their cases and setting their reserves. Objective injuries help As with any jury case, a number of factors can influence the award of damages in a civil action in greater Minnesota. No matter where you try a case, you need to have a sympathetic plaintiff, said Eden Valley attorney John Bradshaw, who tries cases in Meeker and Stearns Counties. In mid-minnesota, "you have to have a good, objective injury," Bradshaw observed. "You're dead with subjective injuries." Bradshaw also said that future damages are hard to win because juries aren't impressed with something they can't see. Jurors in his area are afraid to make insurance companies pay damages because they don't want their premiums to go up, Bradshaw told Minnesota Lawyer. "I hear that over and over again," he said. "Perhaps it's leveling off. There are some signs that it's getting better. Health maintenance organizations have done a lot of damage to [the reputation of] insurance companies." But, Bradshaw added, some juries are just "mean-spirited.... I have some real disagreements with Stearns County juries." On the other hand, Rochester attorney Charles Bird said that geography usually doesn't matter in his area - unless the defendant is the Mayo Clinic. The Mayo Clinic settles the good cases against it and it's hard to win at trial, said Bird. But the juries' sympathies to Mayo doctors don't extend to other medical professionals, he added. Outside the personal injury context, juries have not shown a reluctance to award a large verdict for economic damages when the facts warrant it. For example, Bird noted that there have been several multi-million dollar economic loss cases involving farms in southern Minnesota. "I like farmers [on juries] because they are basic and honest," Bird stated. "They see through baloney. They can spot a liar. They can tell when someone is getting the runaround from a corporation. You see farmers who do deals for thousands of dollars on a handshake, then a corporation says 'we're not going to back up the salesman. We're going to rely on the fine print.' That doesn't work well in rural Minnesota."

4 However, Worthington attorney James Malters pointed out that farmers may not be the best jurors for plaintiffs when the claim is for personal injury. Farmers' life experiences may lead them to minimize other people's injuries, he speculated. For example, Malters recalled juries where three or four of the jurors, who were farmers, were missing one or more fingers from farm accidents. Malters said that when he was growing up in Worthington, men who were missing fingers didn't consider themselves disabled. Lower salaries in rural areas may lead to lower verdicts, Malters noted. "But if you can prove up the economic loss the jury will go with it," he said. Malters believes soft tissue and scarring cases might bring lower verdicts in rural areas, but those are always tough cases, he added. "Tougher cases are tougher wherever you try them," Malters observed. Hanson also theorized that jurors in greater Minnesota tend to be lower income and have fewer non-agricultural assets, and thus be more conservative about money. Additionally, most jurors in rural communities will come from a farm family or be connected to agriculture, and tend to see more people coping with injuries, he added. Pleasantly surprised Duluth attorney Stephanie Ball, who has tried cases in the Duluth area, Koochiching County and on the Iron Range, said that she has been pleasantly surprised by verdicts in all three areas. A plaintiff who has tried his or her best despite an injury and has the type of injury the jury can understand will award a good verdict, she told Minnesota Lawyer. Ball sees a trend favorable toward plaintiffs. She stated that there is now a "healthy skepticism" about insurance companies among jurors. "Defendants generally rely on plaintiffs not getting good verdicts in rural areas and it is not prudent to rely on that anymore," she observed. Ball speculated that economic prosperity is one reason for the leveling of the plaintiff's playing field. "People generally are better off," she said. "Jurors judge compensation from their own set of shoes." In addition, "people generally seem happier," she said. "This may flow from their standard of living. I'd rather have the juror who is better situated in his or her own life."

5 Falsani said that jurors in Minneapolis and St. Paul sometimes appear stressed out, and their tension is reflected in their verdict. "I think its unhappiness with their own life," he said. "I tried a case in the Twin Cities where all the jurors sat with their arms folded in front of them." Home on the range Twin Cities lawyers traveling to greater Minnesota to try cases sometimes worry that the other side has the home-field advantage, but greater Minnesota lawyers who spoke with Minnesota Lawyer dismissed such fears. "Some defense attorneys think they're getting home-towned," Bird acknowledged, but added that he doesn't see it as a problem. Haag, in contrast, said, "sometimes you're dealing with a lawyer with an attorney in a small town. That may have some influence. In a particular locale, some lawyers are very well-known and respected." Sheehy said that he sees little regional prejudice, but any bias that may exist can be effectively dealt with in voir dire. "I tell the jury, 'we're from Minneapolis, the other lawyer is from Rochester - do you think that should have any influence on the case?' Once jurors are reminded they hold a constitutional office they try to set aside their prejudices," he said. A case against a major local employer or a prestigious local company - such as the Mayo Clinic when trying a case in Rochester - raises a potential bias problem, Sheehy said. However, he again stressed that such concerns be addressed directly in voir dire. Sheehy said he asks jurors questions such as, "Do you think equal protection of the law is important? Do you think the rich and poor should be treated the same in a court of law?" Hanson's opinion is that it doesn't matter whether you are a Twin Cities lawyer or a Rochester lawyer, if you are suing Mayo Clinic, you will probably lose. "They're impossible to beat," he stated. Malters warned against coming to a rural area acting like a big-city hotshot. "If an urban lawyer comes in acting like an urban lawyer jurors will resent it,' Malters observed. "They won't [have a problem] if the lawyer acts like a nice person."