Maria McLaughlin
PHILADELPHIA - A Pennsylvania ruling affirming $200 million for a child born with cerebral palsy sounds the warning alarm for companies hoping that court would help stem so-called "nuclear verdicts," which feature staggering amounts for damages like pain and suffering.
On July 10, the state Superior Court affirmed the nine-figure verdict against the Hospital of the University of Pennsylvania, which allegedly failed to switch a woman's birth plan to C-section in time to save a child known as J.H. from complications.
The verdict came from a jury in the Philadelphia Court of Common Pleas and was approved by a three-judge panel, including Judge Maria McLaughlin. The verdict included $100 million for the child's life care plan and $80 million in non-economic damages.
"The lack of guardrails surrounding non-economic damages allows for enormous variability and subjectivity - laying the groundwork for an increase in nuclear verdicts," Pennsylvania Coalition for Civil Justice Reform executive director Curt Schroder said.
It could be a sign of things to come, as the Superior Court currently has before it the appeal of Exxon in a $725 million case alleging benzene from gasoline caused the leukemia of Paul Gill.
PCCJR and business groups like the U.S. Chamber of Commerce and the National Federation of Independent Business filed an amicus brief in the Exxon case, decrying massive non-economic damages awards that uppercut defendants. Most of the $725 million verdict was made up of non-economic damages.
There are no guidelines for jurors when they decide these damages, allowing plaintiff lawyers to spin tales of corporate greed to them to raise their anger. Gill's lawyers at trial wrote on an easel that Exxon sells 12.5 billion gallons of gasoline each year and added $3 per gallon on it.
The verdict was one of several reasons why Pennsylvania jurors gave out the third-highest amount of money in the country last year.
"How a jury might arrive at such a large number is a mystery," wrote the coalition of groups urging the Superior Court to strike it. "Non-economic damages for pain and suffering, embarrassment and humiliation, and loss of life's pleasures are inherently subjective to each plaintiff.
"As a result, they are by their nature susceptible to arbitrary and unpredictable calculations."
Studies have shown that large verdicts are only getting larger. In Philadelphia, a jury gave out more than $2 billion in a case alleging Roundup weedkiller causes cancer. Lawsuits alleging talc in products like Baby Powder contains asbestos have also produced multimillion-dollar verdicts.
In the case of J.H., it was alleged the child's mother arrived at the hospital at 11:45 a.m. after experiencing a normal pregnancy, though J.H. was a week late. After admission, she suffered a fever and J.H.'s heart rate elevated.
At noon, she received supplemental oxygen and an IV. The attending physician saw her for the first time, between 12:15-12:45 p.m. She planned for a vaginal birth, with a C-section as Plan B.
Possibly at 12:30, the mother was given Unasyn, an antibiotic, though the timing was disputed. If it's true, the medication would have been in the mother by 1 p.m. One note said it was still being administered at 2:30.
Pitocin was given to induce labor at 1:53 but instead decreased oxygen to J.H. A C-section was ordered at 2:05. The child wasn't delivered until 2:36, and the plaintiffs convinced the jury J.H. should have been delivered by 1:30.
He lost significant brain function, can't speak, can't walk and is fed through a tube. Plaintiff experts say a lifetime of complications awaits him, though experts disagreed on how long his life expectancy is.
Plaintiffs said around 70, the defense said 29. Jurors sided with the plaintiffs, awarding $100 million for his life care plan. On appeal, HUP said this went against the weight of the evidence.
"The jury was presented evidence on the cost of the care J.H. requires, and presented with life expectancy tables and J.H.'s life expectancy, and based its award on the evidence presented, concluding J.H. had a life expectancy of 70 years of age," Judge McLaughlin wrote.
"The award does not shock the conscience."
As for the $80 million in pain and suffering, HUP's expert said J.H.'s limited brain function impairs his ability to feel pain and understand his situation. During trial, the family's attorneys - they were represented by Kline & Specter; Gilman & Bedigian; and Howard Bashman - referenced Philadelphia Eagles quarterback Jalen Hurts’ $51 million salary.
They also told the jury non-party disabled children should be considered when awarding damages, leading to HUP's assertion the $80 million non-economic award was based on sympathy.
But HUP didn't object to these comments and lost any chance to complain now, the Superior Court said. And finally, the court rejected the argument that it should consider evidence of the impact the verdict will have on the health care industry.
