Waiver of Claim for Economic Loss Contributes to Significant Verdict

Two lawyers in Connecticut recently made news when they elected not to put on proof of economic losses in a trial of a personal injury case, instead focusing on non-economic damages.  The result?  A verdict for $10 million in non-economic damages.

The case arose when representatives of Segway failed to give the plaintiff a helmet during a test drive of the device.  The plaintiff fell, hit his head, and had a mild traumatic brain injury.  Plaintiff lost his sense of taste and smell.  There was no notable loss of mental functioning.

The Connecticut Law Tribune reports that "Adelman [one of the plaintiff’s lawyers] said he didn’t want to distract the jury with claims for medical treatment, lost income or attorney fees. If the jurors had those figures, he said they would not be tempted to use a formulaic multiplier of economic damages to arrive at non-economic damages. ‘We didn’t want the jury to be thinking about what the doctors get, ‘or what the lawyers get,’ said Adelman, “because the case was about John.’”

The defense counsel said that the decision to forego proof of economic loss was  "a unique, almost never-seen-before strategy.”  That is true – especially the "almost never-seen-before" part.

My mentor, John Conners, used the exact same strategy in a case I helped him try in 1983.  Our client was burned by a flaming drink.  Mr. Conners made the decision not to put on proof of medical bills (which were over $70,000, a significant amount at the time) because he did not want the jury to think about small numbers. The result was the first million dollar verdict in a personal injury case in Nashville.

Mr. Conners’ decision of almost three decades ago and this most recent success story reminds us of the need to approach each case with an open mind.  The automatic response to trial preparation and presentation is to advance proof on each element of damages.  The best lawyers approach each case as a unique one,  and make an effort to determine the best way to present the evidence in that case.  These lawyers also discuss that decision with the client in advance of trial.

Thanks to Torts Prof for sharing the report of this case.