| Good Grief: Business Subjected to “Grief Expert” in Wrongful Death Trial The facts of this case are grizzly, tragic, and yet in auto accident cases, not entirely unique. Blackmore was driving a semi truck for New Star Freight along Highway 69 near Huntington, Texas, when he lost control. In the matter of a few seconds, the truck hit Becky Vogler’s Honda, killing Becky and her 3 year old daughter Kallie. There was some indication that Becky saw it coming for a few seconds and attempted evasive action. At the outset, keep in mind that this case was, in all likelihood, a contingency fee case, giving the lawyer a financial stake in the case. Also keep in mind that, contingency fee case or not, the plaintiff’s lawyer’s JOB is to recover the most amount of money from the defendants. The art and science of how to maximize jury awards grows in sophistication and experience every day. Any given day the plaintiffs lawyers may find a new weapon, and begin to regularly exploit it against businesses, including yours. One of the trends over the last many years is accident reconstruction. The concept itself is rather old, but the “realism”, being able to communicate the grotesqueness of the event, continues to evolve. Why? Because the more gross the accident, the more pain and suffering must have existed. The more pain and suffering, the larger the loss. The larger the loss, the more dollars are required to “compensate” for it. Computer generated recreations are the current rave. They can look every bit as real as any video game, depending on how much money the plaintiff (and their lawyer) wants to invest in the case. A picture is worth not just a thousand words–it’s also worth a few hundred thousand dollars. Accident reconstruction obviously applies to those directly involved in the accident. But what about a survivor who didn’t see the accident? There was no mental suffering and anguish, because they didn’t experience the accident firsthand. How do we figure out how much money will “fairly” compensate them for their grief, both present and future? Well, these days, the plaintiff can have “grief expert” testify. A what? That’s right, a grief expert. Take this Vogler case for instance. Vogler hired Dr. Phyllis Silverman to testify about grief. Now, Dr. Silverman is no slouch. She has a bachelor’s degree in psychology and sociology, a master’s in social work, a Ph.D. in public health, is licensed to be a social worker, has published 26 papers, and approximately 52 “other” writings, including complete books. “Thanatology”, it turns out, is the “scientific study of death, its causes and phenomena.....the study of the effects of approaching death and of the needs of the terminally ill and their families.” As you can imagine, when the plaintiff’s lawyer called this “grief expert” to the witness stand to testify, the defense raised all sorts of objections. Turns out, Dr. Silverman had NEVER interviewed any of the plaintiffs. Not the wife, not the daughter, not the surviving dad. So “the district court confined her testimony to general theories of grief and recovery.” Feel better now? The test to determine whether or not to allow expert testimony is as follows: the court has to find that the expert’s testimony will be both:
That’s it. A big “BFO” (blinding flash of the obvious). But wait, there are sub-tests for those 2 prongs. To be “relevant”, expert testimony must have a reasoning or methodology that can be properly applied to the facts in issue. Are you ready for another BFO courts use in this setting? Here it is:
Basically, whether or not an expert’s testimony is acceptable, or needed, is a matter of common sense. And for that I went to law school for 3 long years? Talk about giving a trial court judge almost unfettered discretion. As for reliability, the test is a “flexible one” (here we go again), but any expert should use the same level of “intellectual rigor” that characterizes the practice of an expert in the relevant field. Imagine yourself sitting on a jury in a personal injury or wrongful death case. Do you need someone with Dr. Silverman’s credentials to give you information about grief, in general terms, for you to understand grief? Would that help you decide on a dollar amount to compensate a man for the tragic loss of his wife and daughter? Are we taking something that’s extremely subjective, and trying to measure it objectively? Can you even measure something like this objectively? As you can tell, I’m skeptical at best. I am afraid, in very general terms, that “grief experts” may wrongfully influence jurors by presenting grief via a mirage-like appearance of science, when in truth (and justice) there is no way to scientifically quantify grief. Or emotional loss. Not surprisingly to me, the defense made just this argument against allowing this grief expert to testify. And said the court “well, the trial court has discretion to admit this sort of testimony, or not. They have this three part balancing test and as long as the trial court is very, very obviously wrong, whatever the trial court judge says, goes.” Now here’s the three part test:
Clear as mud, right? This test is a great illustration, though, of the power of trial court judges. They can make or break cases based on their rulings on what evidence to allow, and not allow. And if they do it right, their decisions are practically unreviewable by appeals courts, because those decisions are “within the trial court’s discretion.” Wise and wily trial judges do this intentionally to keep from being overturned on appeal, something every judge guards against. And this is one of the games judges can play to favor local-boy lawyers should they so desire. As for the dispute over Dr. Silverman’s testimony, the court of appeals basically concluded that it was “highly unlikely that Dr. Silverman’s testimony aided in the jury’s resolution of the case or in its awards to Mr. Vogler.” No harm, no foul, next. And so, now to the final instruction from this case. Actually, the whole “grief expert” fuss was only a sub-part of the overall number one dispute on appeal. The defendants’ main point was that the damages awarded by the jury were just too high. No reasonable jury would have given that many dollars to Mr. Vogler. How in the world can an appeals court go about figuring out what a “reasonable jury” would have done? Well, they did it here, and it resulted in reducing the awards, albeit just a little bit (my question is, whether the grief expert “caused” the jury to be unreasonable, because if so, then certainly her testimony wasn’t “no harm no foul”, right?) Here’s the process courts go through to review the amount of damages awarded. It is one of, if not the most difficult, challenges to make. The court looks at the context of awards in similar cases with similar injuries in the “relevant jurisdiction.” For state law claims in Texas, that means the State of Texas. Then the court uses the “maximum recovery rule.” The court compares the jury award being challenged to these other, prior, similar cases. The appeals court may take the largest prior award, and multiply it by 50%, basically increasing it by half again. As long as the challenged award is less than that number, it’s o.k. If it’s larger than that number, the appeals court reduces the damages amount to this maximum allowable number. So, any jury can be 50% higher than a prior jury, and be “reasonable.” As you can see, this is why it’s important to keep jury awards in line, and why there’s a big fuss made by defense lawyers over any large verdict. Every large verdict, even if it’s just one verdict out of hundreds, has the chance to affect many other cases on down the line. In this case, the jury awarded Mrs. Vogler’s estate an amount for her pain and suffering, and for her mental anguish pre-death, based on the fact that she suffered for the few seconds the accident took to unfold. They measured this time period from the point in time she appeared to take evasive action to avoid the out-of-control truck, through the evasive action, through the initial collision, until the point of her most likely death when the car was dragged under the semi trailer and rolled over, from the hood to the trunk, by the trailer’s rear wheels. All that took a few seconds. And for those precious few seconds, the jury awarded Mrs. Voglers’ estate $200,000. If the whole episode took 10 seconds to unfold, that’s $20,000 per second. The only comparable prior case the court could find awarded $20,000 total damages for pre-death distress, and so the appeals court reduced this part of the damages awarded from $200,000 to $30,000 ($20,000 times 1.5), as the maximum amount a reasonable jury could have awarded. The jury also awarded $200,000 to the estate of the 3 year old daughter, Kallie, for her pre-death suffering. The appeals court completely threw this part of the verdict out. The fight was over whether little Kallie ever even knew what was going on, prior to the accident being over. Since Kallie was 3, she was in the back seat strapped in a child seat. Could she see over the back of the front seat, or through the middle of the front bucket seats? Could she sense the stress and anxiety of her mom as the accident unfolded? Did she have any clue as to what was going on and, more importantly, what it meant for her? The jury was obviously persuaded, perhaps by grief as much as anything. But the appeals court read over the trial court record and found “absolutely no evidence, circumstantial or otherwise, to suggest that...Kallie.....had any hint of the impending disaster.” She lived only milliseconds longer than her mom. But without any direct evidence as to what her pre-death suffering included, no dollars could be awarded for that, and $200,000 went to $0. So what does all this lack of clarity coupled with a series of BFOs mean for the business owner? The trial process of chock full of risk, and ambiguities. Even the best intentioned judges make human mistakes from time to time. A court has now directly allowed a “grief expert” to testify. With this opinion as support, I see the possibility that more and more plaintiffs lawyers will use grief experts in every possible case. The whole point of testimony like that is to increase the size of the jury awards, and so the risk increases for businesses and business owners who may find themselves defendants in such cases. Asset protection never looked better. You cannot control a judge’s rulings on evidence from the bench. You can’t control whether your business is or is not sued. Operations generate liability. The most you can do is reduce the chances of being sued, but there’s only so much of that chance that you can eliminate. You’ll never get it to zero as long as your business is operating. And if you don’t do asset protection for yourself, nobody else is going to do it for you. For more information on the why, what and how of asset protection, see our Asset Protection webpage. Vogler v. Blackmore, et al., Case No. 02-41527, U.S. Court of Appeals for the 5th Circuit, November 25, 2003. Close
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