The following blog entry is written from a defendant’s position after a jury verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/brain injury case and its proceedings.)
Here, the jury’s award of $15.1 million in non-economic damages is excessive in light of the evidence and should be reduced by the court. While the evidence established that plaintiff suffered a severe brain injury, there was no evidence that plaintiff’s injury is so debilitating that she cannot function or perform daily activities. Kim Hind, plaintiff’s treating occupational therapist, testified that plaintiff was able to exercise independently, prepare and eat breakfast independently, could follow simple directions, was able to select clothes and dress without assistance as well as perform personal hygiene without assistance. Ms. Hind also testified that plaintiff was able to do laundry, vacuum, swim, and write checks all with minimal assistance. Plaintiff is ambulatory and able to walk without the assistance of a wheelchair, a walker, or any other device.
In light of plaintiff’s abilities to perform numerous daily functions that are a part of normal life, an award of $15.1 million in non-economic damages is grossly excessive. It is clear the jury made its award based on sympathy and passion, influenced by trial counsel’s improper “golden rule” argument, and not based upon the facts of the case.
In addition, the jury’s award of $7.7 million in economic damages is also not supported by the evidence. The jury’s award of $6.4 million for the present value of future economic damages, included an award for future lost earnings that was based on speculation and conjecture about whether plaintiff would return to work full time in the computer assisted drafting (CAD) industry.
Plaintiff presented evidence that the present value of her future medical care was $5,070,560, therefore the remainder of the $6.4 million award ($1,329,440) was for future lost earnings.
At the time of the accident in 2006, plaintiff was working part time at Skye Books doing computer support and clerical work. Plaintiff had not worked full time since 2002 when she was laid off as an AutoCAD drafter due to a shortage of work. Plaintiff, however, sought damages for lost future wages on the theory that plaintiff would have returned to the CAD industry instead of continuing to work part time at Skye Books. Yet plaintiff, who is 50 years old, had taken no affirmative steps to obtain employment in the CAD industry since she had been laid off. Plaintiff submitted no job applications for CAD work, had been on no job interviews, and had not identified a single possible employer for CAD. Plaintiff therefore did not present evidence that it was reasonably certain she would have obtained a full time position as a CAD drafter instead of remaining in the part-time job she had at the time of the accident. (See Part 10 of 11.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.