Sustained Outrage

Tort trials decreasing, DOJ study finds

The Bureau of Justice Statistics, which is part of the U.S. Department of Justice, released a new report this week on the number of tort cases that went to trial in state courts 2005. Torts, as the report reminds us, are cases with “one party alleging injury, damage, or loss stemming from the negligent or intentional acts of another party.”

Here are some highlights:

— Almost 60 percent of tort cases that went to trial were car accident cases. The next highest category, at 15 percent, was medical malpractice.

— Plaintiffs won about half (51.6 percent) of the time. This was true for jury trials (51.3 percent) and bench trials (56.2 percent). Nine out of ten trials were decided by juries.

–The median final award amount for plaintiffs who won was $24,000. The median for awards by juries ($24,000) was pretty similar to the median for awards by judges ($21,000).

(A quick reminder: the median is not the same as the average; the median is the number where half of the sample is higher, and half is lower.)

–Winning plaintiffs sought punitive damages less than 10 percent of the time. Punitive damages were awarded to less than three percent of plaintiffs who won. Judges ($54,000 median) tended to award smaller punitive damages than juries ($100,000 median), although the study said those numbers are “not statistically different.”

–More than half (53.4 percent) of the tort cases that went to trial were one individual suing another individual. Roughly one quarter (27.1 percent) were individuals suing businesses, while less than nine percent were individuals suing hospitals. Businesses suing individuals (1.5 percent) and businesses suing businesses (2.1 percent) made up only a small fraction.

–Overall, the number of tort trials in 2005 (7,038) in America’s 75 most populous counties, none of which are in West Virginia, are down more than 31 percent from 1996 (10,278) and more than 11 percent from 2001 (7,948).

I bring this up because it’s almost time for the American Tort Reform Association to release it’s annual “Judicial Hellholes” report, in which West Virginia has the dubious distinction of being the reigning #1 judicial hellhole. What determines a “judicial hellhole”? Why, the judges, particularly ones who “may favor local plaintiffs’ lawyers and their clients over defendant corporations,” the 2008 report says.

But the statistics seem to paint a different picture. Overall, judges and juries seem to see eye to eye, at least in terms of how they decide the case and in the amounts they award.

In fact, judges seem to be a little more frugal when it comes to monetary awards, particularly punitive damages. One notable exception, which can be found in Table 5 of the report, is that the median amount awarded by judges in medical malpractice cases ($631,000) is much higher than the median awarded by juries ($400,000). Judges were significantly more conservative ($16,000 to $435,000) in professional malpractice cases.

If judges were trying to curry favor with plaintiffs’ lawyers, wouldn’t they award significantly higher amounts than juries? Wouldn’t they be finding in favor of plaintiffs more and more, particularly in high-dollar cases?

Instead, the report concludes, the median awards by juries and judges do not differ statistically. And the plaintiff win rate “has remained relatively stable from 1996 to 2005.” The win percentage for plaintiffs ticked up slightly (from 58 percent to 61 percent) in automobile cases, which is the category with the lowest median award, $14,000. Plaintiffs’ success rate has gone down (from 23 percent to 19 percent) in medical malpractice cases, which had a median award of $400,000.

It’s worth pointing out that these statistics refer only to cases that went to trial, which represents only about four percent of tort cases overall.

Just a little food for thought as we head into the holiday. Happy Thanksgiving, everybody!