KRIS BONN’S LETTER OF THE LAW: Time to rethink trial by jury?
First to the south.
I recently read that a jury in Nashville, Tenn. awarded sportscaster Erin Andrews $55 million in her civil suit over the secret recording and release of a video showing her naked during a hotel stay.
If that wasn’t outrageous enough, a Florida jury awarded Hulk Hogan $115 million in his civil suit against Gawker Media and a further $25.1 million in damages for the release of nine seconds of a sex tape featuring Hogan and his former best friend’s then-wife Heather Clem in 2012.
Andrews and Hogan were never physically injured and there was no evidence of serious psychological harm.
Compare those two massive awards to two recent jury decisions in Ontario involving plaintiffs who suffered real physical and psychological injuries that have permanently impacted their daily activities.
In one case, the plaintiff was rear ended by the defendant. Evidence called at trial established that the injured woman, as a result of the rear end collision, would never be able to return to work as a sales clerk.
The trial judge accepted on the evidence that the plaintiff had suffered permanent, serious impairments to her daily activities. Notwithstanding the judge’s finding and the medical evidence, the jury awarded the injured woman a paltry $23,500.
The second case had very similar facts. The plaintiff was rear ended by the defendant and suffered serious and permanent physical and psychological injuries.
The trial judge accepted the evidence called at trial that the woman’s life has been forever changed by the crash and that she would continue to live with serious pain and limitations to her daily activities for the rest of her life. The jury awarded this injured plaintiff $15,000.
What is going on?
How is it that two individuals (Davis and Hogan) can be awarded tens of millions of dollars for “hurt feelings” while two citizens of Ontario who suffered serious and permanent injuries are awarded mere pittances for their real pain and suffering, not to mention next to nothing for their loss of income?
I believe the answer lies with the relentless campaign by insurance companies and large corporations to demonize injured plaintiffs.
Chronic soft-tissue pain is complicated and not easily understood. Those suffering from soft-tissue chronic pain are painted as fraudsters and fakers.
Fortunately, most people will not suffer chronic ongoing pain and those are the people who make up the jury. Jurors may not appreciate that pain can be very real and debilitating, even where the medical science cannot point to so called “objective” evidence to explain the source of the pain.
As stated by our Supreme Court of Canada over 13 years ago in the case of Nova Scotia v. Martin:
Chronic pain syndrome and related medical conditions have emerged in recent years as one of the most difficult problems facing workers' compensation schemes in Canada and around the world. There is no authoritative definition of chronic pain. It is, however, generally considered to be pain that persists beyond the normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques.
Despite this lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real. While there is at this time no clear explanation for chronic pain, recent work on the nervous system suggests that it may result from pathological changes in the nervous mechanisms that result in pain continuing and non-painful stimuli being perceived as painful. These changes, it is believed, may be precipitated by peripheral events, such as an accident, but may persist well beyond the normal recovery time for the precipitating event.
Despite this reality, since chronic pain sufferers are impaired by a condition that cannot be supported by objective findings, theyhave been subjected to persistent suspicions of malingering on the part of employers, compensation officials and even physicians.
Maybe it is time to rethink the use of juries in personal injury trials.
I say the default position should be no jury trials for personal injury cases unless both parties to a lawsuit agree. Judges, who are trained and experienced to hear these cases, will make decisions that are more consistent and cases will take less time.
From my experience, most citizens don’t want to sit on a jury any way.
Unfortunately, the change away from juries won’t come anytime soon. Juries are here to stay for the foreseeable future.
But if you are called to jury duty on a personal injury case, try to put yourself in the plaintiff’s shoes. Don’t be persuaded by the insurance companies that most plaintiffs are faking or malingering – listen and follow the evidence.
Kristian Bonn is a personal injury lawyer and partner at Bonn Law. He grew up in Trenton, works in Belleville and Trenton and lives just over the Bay Bridge in Prince Edward County.
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