This article was originally published in DRI’s In Transit, The Newsletter of the Trucking Committee (Volume 15, Issue 1)
I’m sure it was just a coincidence that the idiot riding six feet off my bumper in wind-driven rain, driving a cabover tractor pulling a flatbed trailer, had assumed that position just South of Chattahoochee, where the State of Florida houses its criminally insane. Looking over at my oblivious two year old son, sleeping soundly in his car seat, and thinking just how dangerous the situation was, particularly coupled with the greatest twisting elevation changes along that corridor of Interstate 10, I briefly pondered whether a .45 caliber round would penetrate his steering tire. Heavy duty tractor tires are pretty thick…maybe it would have come back at me. Wisely, I’m sure, I changed lanes and let him go on about his obviously very important business.
I’m sure I’m not the only person who has flirted with road rage directed toward an unseen face high above the pavement in a tractor-trailer. The 1971 television film Duel, in which Steven Spielberg made his feature film directing debut, is purportedly based on a real-life experience of its writer. Duel’s plot essentially consisted of actor Dennis Weaver spending the day running (if you can call the operation of an early 70’s Plymouth Valiant running) from the unseen driver of a 1955 Peterbilt. Seemed ridiculous to me. What does Steven Spielberg know about what scares people anyway? Well…there was Jaws!
As a former law enforcement officer, I have had a close look at a significant number of good…maybe even heroic deeds performed by truckers who chose to get involved. More recent memory recalls a trucking client hanging in his overturned Kenworth, being cut from his burning cab by a Canadian trucker on I-75 near Gainesville, Florida. The question is whether the bad acts of a few outweigh the good. Not from a psychological perspective, but rather from a financial one. A reputable psychiatrist, Richard C.W. Hall, M.D., who serves as a Courtesy Clinical Professor of Psychiatry with the University of Florida’s College of Medicine, whose curriculum vitae closely resembles the Tallahassee phone book, and who believes that a really bad experience places the seed of ill will in the subconscious mind, opined that I would not represent a preferable juror in a trucking case. Even with my conscious recognition of the many stellar deeds by truckers I have personally observed, Dr. Hall recommends leaving me off your jury.
I don’t seem to know many people who have not had a bad experience with a heavy truck. I’m sure plenty of them have had positive experiences as well. However, those don’t seem to be the events that are brought up for discussion. The question is how do jurors respond as a general rule when assessing damages against our trucking clientele. I have often heard experienced attorneys and claims representatives refer to a rule of thumb, under which juries generally award pain and suffering damages in a 3:1 ratio to a plaintiff’s economic damages. I had not monitored my own verdicts closely enough to confirm or deny the existence of such a ratio based on my own trials. I can certainly think of exceptions from my own cases. A total verdict of $165,000 with no non-economic (pain and suffering) damages, due to the absence of a finding of a permanent injury in a spinal fusion case, immediately comes to mind. Attorneys on both sides of the courtroom did a little head scratching after that one.
A jury’s real “free hand” to assess damages is in the area of non-economic damages, an obviously very subjective category of damages. A recently featured In Transit article, Overview of Defending Trucking Cases, by Lee H. Stewart (January 12, 2012), which referenced jurors generally having negative opinions of defendant trucking companies, mentioned a total verdict of $250,000 with listed economic damages of $2,500, which would represent a staggering non-economic to economic damage ratio of 99:1.
I wanted to see what the historical ratio was in trucking cases nationwide, and determine whether that ratio differs from that of non-trucking cases. Of course, as an added benefit, completing the verdict research allowed me to evaluate the ratio for non-trucking cases along the way, to determine whether any credence should be given to the mystical “rule of thumb.” I did not consider cases involving particularly egregious conduct on the part of commercial truckers. I’m sure a statistician can find fault somewhere with the methodology. Oh well. There is a valid reason I took logic in the philosophy department rather than calculus, and went to law school rather than medical school (and did not pursue any other course of study which required significant math credits).
Sorry, no rocket science here. I’m not even allowed in the laboratory. I located verdicts in which the economic and non-economic awards were listed separately in four regions of the country, in areas within 250 miles of major metropolitan areas. I was able to obtain at least three verdicts in both trucking and non-trucking cases from each region, except for the Central and Northeast Regions. It seems that neither Missouri nor New York verdict reporting services place much emphasis on the sections of the reports where damages are itemized. Those sections were generally left blank, with only the total awards listed. After obtaining the trucking verdicts, I searched for non-trucking verdicts with the same types of injuries. If I was unable to identify an itemized verdict with similar injuries, I attempted to utilize non-trucking verdicts in which a similar monetary amount was awarded. The non-economic awards were divided by the amount of the economic awards in each case, thereby providing the ratio of non-economic damages to economic damages.
Surprisingly, the ratio for trucking cases ran from a high of only 0.60:1 in a ruptured spleen case, JVR No. 502206 (Unknown State Ct. (Cal.), 2008 WL 6555971 (case names have been purposefully omitted) to a low of 0.07:1 in a crushed foot case where more than $3.6 million in economic damages were awarded, but the jury awarded only $245,000 in non-economic damages, 29 Trials Digest 13th 7 (Cal. Superior), 2010 WL 2757295; see also JVR No. 1011160052 (Cal. Superior), 2007 WL7327977. The average non-economic to economic award in trucking cases for this region was only 0.53:1. From a non-trucking standpoint, the ratio ran from 0.25:1 in a thoracic outlet syndrome case with a total award of only $20,000, 25 Trials Digest 13th 25 (Cal. Superior), 2010 WL 2401185, to 1.78:1 in a leg fracture case with surgery where the total award exceeded $4 million, 45 Trials Digest 12th 20 (Cal. Superior 2009); see also 2007 WL 3223544 (Cal. Superior). The average ratio of non-economic to economic damages awarded in this region for non-trucking cases was 0.99:1.
The ratio for trucking cases ran from a high of 22.5:1 in a case with multiple rib fractures and a total award of $940,000, with economic damages of only $40,000, JVR No. 486879 (Unknown State Ct. (Mo)), 2007 WL 5196641, to a low of 7.26:1 in a case with severe burns, JVR No. 478845 (Unknown State Ct. (Mo)), 2007 WL 4855254; see also JVR No. 478857 (Unknown State Ct. (Mo)), 2007 WL 4855257. The average ratio in this region for trucking cases was 12.6:1. The non-trucking ratios were 9:1, XVIII JVRS 15-4(Unknown State Ct. (Mo)) , and 6.8:1, 2009 WL 1649992 (Mo. Cir. 2009), for an average of 7.9:1.
The only identified itemized verdict involving a commercial truck arose from an accident involving a rental truck, had a non-economic damage to economic damage ratio of 53.3:1, was based on a rotator cuff tear and herniated disc, and had a total award of $815,000 with only $15,000 in economic damages. JVR No. 486373 (Unknown State Ct. (N.Y.)), 2007 WL 5196568. Non-trucking verdicts ranged from a low of 0.2:1 in a case based on herniated thoracic and lumbar discs, as well as bladder and bowel incontinence, JVR No. 474463 (Unknown State Ct. (N.Y.)), 2007 WL 4730189, to a high of 25.3:1 in a case based on nerve damages to a single hand with a $6.7 million non-economic award, with economic damages of only $265,000. JVR No. 508228 (Unknown State Ct. (N.Y.)), 2008 WL 7399754; see also JVR No. 503270 (Unknown State Ct. (N.Y.)), 2009 WL 3175622. The average ratio for non-trucking cases in this region was 9.9:1.
The ratio from trucking cases ran from a low of 0.1:1 in a case based on an alleged closed head injury with a fractured ulna, and a non-economic award of only $100,000 with an economic damage award of $762,000, 11 FJVR 10-7 (Fla.Cir.Ct.), 2011 WL 4912992 , to a high of 8.8:1, 2011 WL 7024681 (Fla.Cir.Ct.); see also 2011 WL 3580110 (Fla.Cir.Ct). The average ratio in trucking cases was 3.3:1. In non-trucking cases, the awards ranged only from 0.4:1 to 0.5:1, for an average of 0.4:1, with one case involving a closed head injury claim with a total verdict of only $148,000, with $98,000 in medical expenses. 2011 WL 7054348 (Fla.Cir.Ct. 2011); see also 2011 WL 7054344 (Fla.Cir.Ct. 2011); 06 FJVR 8-54 (Fla.Cir. Ct), 2006 WL 2865278.
Nationwide, these verdicts revealed an average non-economic to economic damage ratio of 4.5:1 in non-trucking cases. Unfortunately, the ratio increased to 10.2:1 in commercial trucking cases. Surprisingly, the ratio dropped significantly West of the Rocky Mountains, particularly in California. In view of the apparently significant effects of two particular verdicts on the ratios in both the trucking and non-trucking categories, I dropped the highest and lowest ratios from each category, and ran the averages a second time, revealing an average non-economic to economic damage ratio in non-trucking cases of 2.7:1, which increased to 6.1:1 in trucking cases. This appears to give some validity to the aforementioned “rule of thumb” in non-trucking cases. Further, these verdicts appear to support the contention that jurors are harder on truckers than they are the general population when given a free hand, even in the absence of any particularly egregious conduct on the part of the truckers.
Ryan Garrett is a Partner with the Tallahassee, Florida office of Butler Pappas Weihmuller Katz Craig LLP, focusing his practice on third party liability defense. He has litigated automobile and commercial trucking negligence, products liability, toxic mold, and contractor liability claims, as well as professional negligence, administrative licensing issues, challenges to administrative rulemaking by professional boards, and recovery of alleged Medicare overpayments. He has tried cases in the civil, administrative and securities arbitration arenas.