By David E. Frank
While stopping short of calling it a trend-setting year, trial lawyers say they are encouraged that the state's top verdicts in 2005 far exceeded those of 2004.
In fact, the five largest verdicts of '05 — ranging from a $128 million patent and trademark case in U.S. District Court in Boston to a $12.8 million medical-malpractice matter in Suffolk Superior Court — all exceeded the No. 1 verdict handed out in 2004, a $9.41 million award.
Lawyers said they were further encouraged by the fact that 2004's top verdict was more than double the $4 million award that took first place in 2003.
The top five verdicts in 2005 included three Superior Court cases and two from U.S. District Court.
Massachusetts Bar Association President Warren F. Fitzgerald called it "heartwarming" to see juries awarding amounts "that begin to approach fair compensation for the losses people have suffered, because we have been woefully behind the national average in terms of compensating people."
Nationally, Fitzgerald noted that the chances of obtaining a plaintiff's verdict following a jury trial in a tort case stands at about 50 percent.
In Massachusetts, however, a plaintiff's odds of winning range from less than 20 percent in many counties to about 34 percent in the most favorable areas.
"So, to the extent that the amounts of a few of these cases are higher is a good trend," he said.
But Fitzgerald cautioned that a statistical sample that measures only the top verdicts earned in a particular year is not large enough to accurately determine whether a meaningful pattern is occurring.
Marsha V. Kazarosian, president-elect of the Massachusetts Academy of Trial Attorneys, agreed that the results are noteworthy but also stopped short of reading too much into them.
"I think the results are telling if used in perspective," she said. "You can't simply look at the numbers and say that 'this is a trend and that jury verdicts are sky-high,' but they certainly can give you an idea of how a particular venue views a certain type of case."
Boston lawyer Margaret M. Pinkham, who along with M. Frederick Pritzker wasplaintiff's counselin the case that fetched the largest verdict of 2004, said she was surprised to see the numbers continue to climb.
"It's very challenging to get a big-figure plaintiff's verdict in Massachusetts," she said. "To have this high number all in one year, whether it's a blip or the start of a trend, is going to play a part in changing the expectations lawyers may have as to what the potential range of a jury verdict may be."
Jury verdicts that topped $1 million
For the Top Settlements list, click here.
Cell phone co. wins patent claim vs. rival
#1 - $128 Million
Patent & trademark
Freedom Wireless, Inc. v. Boston Communications Group, Inc., et al.
U.S. District Court, No. C-00-1129-SBA
Date of verdict: May 20, 2005
Plaintiff's attorneys: William Price and Christopher Tayback, Quinn, Emanuel, Urquhart, Oliver & Hedges, Los Angeles
Status of verdict: On appeal, pending before the federal circuit
Description of case: A prepaid cellular phone service company and four wireless carriers were ordered to pay $128 million in damages to Freedom Wireless Inc., a firm based in Phoenix, Ariz., that patented technology and systems to provide prepaid service. Defendant Boston Communications Group Inc. was found liable for all damages after the jury determined it used the plaintiff's patented technologies in providing prepaid services that wireless carriers offered their customers. The other defendants — Cingular Wireless, AT&T Wireless, CMT Partners and Western Wireless Corp. — were found liable for smaller amounts based on the time their customers were using technology and systems for which Freedom Wireless held patents.
Turning point during trial: Price says the case turned with "the cross examination of the defendant's expert witness, Steven Wicker. His examination helped to really crystallize how they infringed our patent, and he took such absurd positions which were contrary to the defendant's own documents. We established infringement through him."
Infant injured by 'inexperienced' doctor
#2 - $23.4 Million
Medical malpractice
Antonelli, et al. v. Halladay
Middlesex Superior Court, No. 99-4391
Date of verdict: Aug. 17, 2005
Plaintiff's attorneys: Robert M. Higgins and Ursula A. Knight, Lubin & Meyer, Boston
Status of verdict: Paid, subject to a high-low agreement
Description of case: At 38-weeks pregnant, the minor plaintiff's mother was sent home with instructions to return in one week after some testing. When the mother noted decreased fetal movement one night, she called her obstetrical practice. On arrival at the hospital, the mother was placed on a fetal heart monitor and it was non-reassuring. It was noted that the baby had little or no tone and there was no movement for a total of 45 minutes.
The plaintiffs' expert witnesses testified that the minor child was in trouble at this point and required an emergency Caesarean section for delivery. The defendant obstetrician decided to attempt a vaginal delivery, then waited another three hours before delivering the baby. The defendant testified that she waited for additional staffing to arrive, and that in the interim she went to rest. Twenty minutes after the delivery, the baby began to experience seizures. Now at age 8, his cognitive abilities are that of a 3- or 4-year-old, and he requires constant care and supervision.
Turning point during trial: Higgins recalls that it was "when the defendant took the stand. Until that point it had been expert witnesses, but my best witness was the defendant. She came across as extremely inexperienced [making] some strange comments on the stand about her ability. She said to me, 'You wouldn't understand, it's my gift to take care of babies.' It was odd. She didn't have really good answers as to why. When the jury finally had a chance to meet her, she didn't give the jury a reason to believe she had done anything right."
Instrument co. hurt by false advertising
#3 - $20.7 Million
Lanham Act/Trademark
First Act Inc. v. Brook Mays Music Company, Inc.
U.S. District Court, No. 03-02120-EFH
Date of verdict: Dec. 2, 2005
Plaintiff's attorneys: Lee Carl Bromberg and Julia Huston, Bromberg & Sunstein, Boston
Status of verdict: The defendant has indicated it will file post-judgment motions.
Description of case: Brook Mays Music Company, Inc., one of the largest traditional music retailers in the country, circulated a false advertisement claiming the products from First Act Inc., a company that designs and sells musical instruments, were "Instrument Shaped Objects" of poor quality that "doom" students who use them to "failure."
The false advertisement was distributed to more than 8,000 people throughout the United States. The publication of the false statements had a devastating effect on First Act Inc.'s business, and it testified that it lost sales and experienced increased returns as a result.
Turning point during trial: Bromberg recalls, "When our expert witness, who was a professional trumpet player testifying as to the quality of the instruments, took one of the trumpets and played 'Misty' for the jury, it was quite an amazing moment in the trial. It really changed the mood in the courtroom, the way music can transport you."
Motorcyclist brain-damaged after collision
#4 - $19.5 Million
Motor vehicle negligence
Hanlon v. Sandman
Worcester Superior Court, No. 00-1507A
Date of verdict: March 7, 2005
Plaintiff's attorneys: Michael C. Wilcox and Louis P. Aloise, Wilcox & Aloise, Worcester
Status of verdict: On appeal, pending assembly of the transcript
Description of case: The plaintiff, who was operating a motorcycle, was injured when the defendant turned left in front of him. The defendant was arrested and charged with operating under the influence and several related offenses, including operating to endanger and leaving the scene after causing personal injury.
The plaintiff suffered a severe closed-head injury and numerous fractures to his face, skull and extremities. The plaintiff is permanently disabled with ongoing mental deficiencies.
Turning point during trial: Wilcox says: "The testimony of the plaintiff's mother was a critical turning point. She was a compelling witness in every respect. At one point there was an objection by opposing counsel because members of the jury were crying. [Opposing counsel claimed] undo prejudice by the jury. It was difficult to even ask [the plaintiff's mother] the questions. It was such a painful thing."
Difficult delivery leaves baby with deficits
#5 - $12.8 Million
Medical malpractice
McLaughlin v. Peccei, et al.
Suffolk Superior Court, No. 98-02231E
Date of verdict: May 9, 2005
Plaintiff's attorneys: Andrew C. Meyer Jr. and Suzanne C. McDonough, Lubin & Meyer, Boston
Status of verdict: Defense motions for a new trial were rejected, but the lost earnings award was reduced by $1.6 million, after the judge found that the award the jury had given was marginally excessive. Currently, the award stands at $24 to $25 million, with interest.
Description of case: The plaintiff was taken to Massachusetts General Hospital so that doctors could begin inducing her labor. It was the responsibility of the defendant obstetrician, who wasn't yet board certified, to oversee the plaintiff's care. The next day the defendant, without explaining any accompanying risks, broke the plaintiff's water in an effort to advance the labor, but there was little progression and the baby was starting to show signs of stress. Instead of a Caesarean section, however, the defendant positioned the plaintiff on her side, gave her oxygen, then signed out and left.
Nearly three hours later, another defendant doctor, also not board-certified at the time, saw the plaintiff. That doctor decided to deliver the baby with a vacuum extractor. Several attempts were made without a successful delivery. At birth the infant was unresponsive and showed signs of trauma and bruising around her head. MRIs and CT scans would later reveal bleeding within the baby's brain. The child now suffers from learning disabilities, wears braces, occasionally requires a walker or stroller, suffers from seizures and is prone to falling down.
Turning point during trial: "The cross examination of both defendants," says Meyer. With one defendant forced to admit an inaccuracy and the other saying things that were inconsistent with the record, "their honesty was called into question," he explains.
#6 - $4.138 MILLION
Eminent domain
James H. Casella, et. al. v. Groton Dunstable Regional School District
Middlesex Superior Court, No. 02-3561
Date of verdict: June 24, 2005
Plaintiff's attorney: George A. McLaughlin III, The McLaughlin Brothers, P.C., Boston
Status of verdict: On appeal
Description of case: The case involved the eminent-domain taking of approximately half of the plaintiffs' 350-acre parcel in Groton and Dunstable for the new Groton-Dunstable Regional High School.
The issues for the jury were the fair market value of the plaintiff's property on the June 29, 2001 taking date and the damages that the plaintiffs' remaining property suffered as a result of the taking, which were complicated by various development issues, including wetlands and endangered species concerns. The trial lasted one week and involved a jury view of the property.
Turning point during the trial: "The turning point in the case came during the defendant's appraiser's testimony," McLaughlin recalls. "He made the classic expert mistake of overreaching, and once he was exposed, both he and the defendant's case lost all credibility."
#7 - (tie) $4 MILLION
Motor vehicle negligence
Krasowski v. Shapiro's Produce, Inc.
Suffolk Superior Court, No. 03-1980-A
Date of verdict: April 15, 2005
Plaintiff's attorney: C. William Barrett, Esdaile, Barrett & Esdaile, Boston
Status of verdict: The parties settled after the verdict.
Description of case: The plaintiff sustained a severe degloving injury when he was struck by the defendant's tractor-trailer. The plaintiff claimed the defendant's truck driver failed to exercise reasonable care while driving around the plaintiff, who was a pedestrian standing by his own tractor-trailer at the time he was struck.
The defendant claimed that its tractor-trailer was not present at the accident scene during the time of the collision, and, furthermore, that the plaintiff was contributorily negligent. The presence of the defendant's tractor-trailer was established through the testimony of the plaintiff, the defendant's employees and documentary evidence provided through subpoenas of businesses operating in the area of the accident.
Turning point during trial: Barrett recalls that "there were some documents missing — or alleged by the plaintiff to be missing — from the defendants records. The jury felt that those documents should have been produced or the defendants should have been a bit more forthright with [the documents'] whereabouts."
#7 - (tie) $4 MILLION
Negligence & tort
Doe by Vawter v. Wormser
Essex Superior Court, No. 2000-0330A
Date of verdict: Nov. 22, 2005
Plaintiff's attorneys: Daniel T.S. Heffernan and Sherry L. Ruschioni, Kotin, Crabtree & Strong, Boston
Status of verdict: There is a hearing scheduled on whether to allow a set-off of settlement amounts paid by co-defendants.
Description of case: When the plaintiffs' father died of a heart attack, their mother descended into substance abuse, severe depression and other mental illness. The mother began seeing defendant social worker Elizabeth Wormser Emerson for therapy. In March 1995, the plaintiff son telephoned emergency services to report that his mother had driven him and his sister home drunk from a restaurant and he had had to put her to bed. His therapist filed a report with the Massachusetts Department of Social Services, which determined that the children were at risk of neglect.
A year after the children were removed from their mother's home, they began disclosing that they had been subjected to years of sexual abuse and neglect by their mother. Defendant Emerson never filed a 51A about the mother. Emerson's notes were replete with references to the mother's substance abuse, feelings of hatred and rage towards her children and serious mental illness. The plaintiffs' social work expert testified that Emerson had a duty to ensure the safety and welfare of the children for multiple reasons.
Turning point during trial: Heffernan says "the turning point was when we called the defendant as a witness and went through her own extensive notes. Since we projected them onto a screen, the jury got to see us establish our case and refute her defenses with her own records."
#9 - $2.8 MILLION
Medical malpractice
Anthony Renzi, Administrator of the Estate of Mary Jane Renzi v. Veatch, et al.
Essex Superior Court, Lawrence, No. 01-0840D
Date of verdict: March 25, 2005
Plaintiff's attorneys: Annette Gonthier-Kiely and Maura L. Sheehan, Gonthier-Kiely & Associates, Salem
Status of verdict: $1.5 million has been paid. However, one of the defendant doctors and the defendant radiologist company have filed a notice of appeal.
Description of case: The plaintiff contended that Mary Jane Renzi saw her primary care physician, Dr. LaVonne Veatch, in December, 1993, December, 1994 and January 1995. Veatch documented by diagram two nodules, both of which she attributed to fibrocystic disease. This same area was the site where Renzi's cancer was diagnosed in 1995.
Renzi underwent a mammogram in 1995 and on the mammogram report the clinical history stated "large increased left breast tissue 12:00 as opposed to right." It was also noted by the patient that she had felt a "breast lump." Renzi was not referred for a diagnostic mammogram followed by biopsy until August 1995, at which time she was diagnosed with inflammatory breast cancer. The cancer spread to the bone and brain, and Renzi died of metastatic breast cancer on Nov. 14, 1999.
Turning point during trial: Gonthier-Kiely says that in addition to the plaintiff's oncologist, who was a credible witness for the causation aspect of the case, "there were two different turning points as to the liability of the primary care physician and the radiologist." The primary care physician admitted she received a copy of a report indicating that a mammogram was read as normal in the face of a prior complaint of a lump. Gonthier-Kiely recalls that the physician "acknowledged that a normal mammogram does not rule out cancer where there is a report of a lump. This opened the door to the plaintiff's claim that once the defendant, by her own admission, was on notice of this history, there was a breach of the standard of care in failing to order a diagnostic mammogram, ultrasound and biopsy."
Gonthier-Kiely adds that "the turning point as to the radiologist was the jury's opportunity to see with the naked eye that there were obvious changes in the January 1995 mammogram when compared to the January 1994 mammogram, contrary to the defendant radiologist's report of 'no changes.'"
#10 - $2.73 MILLION
Contract
Pasquale et al v. Casale et al.
Middlesex Superior Court, No. 02-1115
Date of verdict: July 27, 2005
Plaintiff's attorneys: Ian Crawford and Heidi A. Nadel, Todd & Weld, Boston
Status of verdict: On appeal
Description of case: The plaintiffs, who were minority shareholders in the defendant corporation and the former president of the corporation, sued the corporation and its majority shareholders for breach of duty and breach of contract. The defendant filed counterclaims alleging theft of trade secrets and breaches of fiduciary duty by the plaintiffs.
The jury concluded that the majority shareholders breached a contract that assured the plaintiffs that they would maintain management control of the company. The jury also found that the corporation breached its fiduciary duties to one of the plaintiffs. Middlesex Superior Court Judge Raymond J. Brassard entered judgment in favor of the plaintiffs on all counterclaims. He awarded the plaintiffs $293,211 for lost dividends, directors' fees and unpaid bonuses. A judgment of $2.436 million in favor of the plaintiffs was entered against the defendant company.
Turning point during trial: Crawford cites both plaintiffs' testimony, adding that "the defendants were unable to touch them on cross-examination."
#11 - $2.5 MILLION
Patent infringement
Colassi v. Cybex International, Inc.
U.S. District Court, No. 02-11909-RWZ
Date of verdict: Aug. 30, 2005
Plaintiff's attorneys: Paul K. Vickrey and Frederick C. Laney, Niro, Scavone, Haller & Niro, Chicago
Status of verdict: A motion for judgment as a matter of law is pending.
Description of case: In 1995, the plaintiff, Gary J. Colassi, an owner of World Gym in Foxborough, met with the defendant, Cybex International, Inc., about a treadmill design he invented. Cybex is a maker of fitness equipment.
The plaintiff contended that Cybex said that it was not interested in his invention, but then copied the technology, even where Cybex was aware that the plaintiff had filed a patent application. The plaintiff claimed that Cybex used his design in one of its products in 1997, although Cybex argued that they invented the technology in 1993. The jury awarded a verdict of $2.5 million to the plaintiff — an amount equal to the three percent in royalties that he would have received on the treadmills Cybex has sold since the plaintiff received his patent.
Turning point during trial: Vickrey credits his likeable client. "He was a gym owner and never went to college," the plaintiff's lawyer says. "But I believe people saw that he was credible and came up with something novel," says Vickrey.
#12 - $2.2 MILLION
Personal injury/products liability
Walsh v. Comprehensive Addiction Programs, Inc.
Suffolk Superior Court, No. 01-3157-G
Date of verdict: May 17, 2005
Plaintiff's attorneys: Kenneth I. Kolpan and Carmen L. Durso, Law Office of Kenneth I. Kolpan, Boston
Status of verdict: On appeal
Description of case: On Dec. 24, 2000, the plaintiff was electrocuted while plugging an oxygen container into an electrical outlet at the nursing home where she worked as a nurse. She suffered paralysis on the left side of her face for three months, and was left with permanent brain damage. She also suffers from tremors, seizures and depression.
The plaintiff filed suit against the corporate owner of the nursing home. At trial the plaintiff argued that the repairman who investigated a previous complaint examined the wrong outlet. The defendant argued that it did not have the right to control nursing home employees regarding repairs and maintenance. After one-and-a-half days of deliberation, the jury awarded the plaintiff $2.2 million.
Turning point during trial: "When the CEO of the defendant Comprehensive Addition Programs admitted during cross examination that the company had the right to control the repairs and maintenance, [but] it just never did it," Kolpan recalls.
#13 - $2.17 MILLION
Contract
Doyle v. FleetBoston Financial Corporation and InterPay Inc.
Middlesex Superior Court, No. 2003-02722
Date of verdict: May 13, 2005
Plaintiff's attorneys: Michael R. Coppock and Brendan P. Mitchell, Rubin & Rudman, Boston
Status of verdict: Defendant's motion for judgment notwithstanding the verdict was denied.
Description of case: In 2000, the plaintiff, John F. Doyle, was recruited by FleetBoston Financial Corporation and InterPay, Inc. to be chief financial officer. After Doyle started work, he met with InterPay's president to work out the creation of an equity pool. FleetBoston took the project away and made grants of its own shares and stock options. When InterPay was sold in April 2003 for $182 million, Doyle demanded that he should have received 1.53 percent of the equity realized by the sale. FleetBoston assumed InterPay's liability to the plaintiff, which Fleet Boston denied.
At trial, FleetBoston's defense was that InterPay's president did not have the authority to make the offer of equity participation, and that the plaintiff had waived his claim by accepting FleetBoston's shares and options. The jury deliberated for two-and-a-half hours before awarding $2.17 million to the plaintiff.
Turning point during trial: Coppock says his opponent's use of "ineffective and unnecessary" expert testimony "gave me the opportunity to cross-examine the witnesses."
#14 - $2.09 MILLION
Negligence & tort
Murphy v. The Boston Herald, et al.
Suffolk Superior Court, No. 02-2424
Date of verdict: Feb. 18, 2005
Plaintiff's attorneys: Howard M. Cooper and David H. Rich, Todd & Weld, Boston
Status of verdict: On appeal
Description of case: In 2002, the defendants, the Boston Herald and its reporter David Wedge, published a series of news stories that included statements allegedly made by Superior Court Judge Ernest B. Murphy in a lobby conference. Wedge later made the same allegations on a television show.
At trial Murphy established that the defendants had acted with malice. The jury awarded $2.09 million in damages after deliberating for five days.
Turning point during trial: Cooper says that "the turning point in the case was the testimony of the defendant reporter, David Wedge, who was repeatedly caught contradicting his sworn deposition testimony about critical events and conversations concerning what he was and was not told by his so-called 'sources.' ... Mr. Wedge was the very first witness in the case and in my opinion the defendants never recovered from his extremely poor appearance on the stand."
#15 - $1.315 MILLION
Motor vehicle negligence
Smith v. Price
Middlesex Superior Court, No. 02-3342
Date of verdict: April 11, 2005
Plaintiff's attorney: John J. Bonistalli, Boston
Status of verdict: Motion for new trial was denied, and judgment issued
Description of case: The plaintiff was a passenger in the defendant's two-seat Corvette on April 12, 2002. The plaintiff's roommate was sitting on the passenger seat and the plaintiff sat between her legs. The defendant was driving erratically and attempted a U turn at 35-45 miles per hour when the car hit a curb and flipped over on its side. All three occupants were thrown from the car. The plaintiff sustained a penetration of the ulnar aspect of her proximal right forearm, and underwent three operations in 10 days. She also had seven subsequent procedures and a joint arthoplasty of two knuckles.
At trial, the plaintiff argued that excessive speed and the abrupt turn by the defendant caused the car to flip over. The defendant argued that the plaintiff impaired his operation of the vehicle. The jury found the defendant 82.5 percent negligent and found the plaintiff 17.5 negligent, and awarded damages in the amount of $1.6 million.
Turning point during trial: Bonistalli credits the testimony of the plaintiff, who was "about 35 years old, very attractive, and the victim of a significant injury to her dominant hand which affected her in terms of brushing her teeth, fixing food and working on computer. Despite that, [and] having gone through 12 surgeries, she went back to work [when she was able to] and gain promotions. She was very determined and didn't get discouraged even though she had a lot to be discouraged about."
#16 - $1.285 MILLION
Negligence & tort
T. Arthur Dromgoole v. The Portland Group
Suffolk Superior Court, No. 2002-00562
Date of verdict: June 16, 2005
Plaintiff's attorney: John J. Russell, Boston
Status of verdict: Paid in full
Description of case: The plaintiff, a self-employed truck driver, was injured when the defendant's forklift, being used by the defendant's employee to unload bundles of pipe from the plaintiff's tractor-trailer at the defendant's place of business, tipped over, causing one of the forks to come into contact with the plaintiff's head. After the accident, the plaintiff was unable to operate his truck safely and was unable to obtain a license to do so. All of the medical evidence concluded that the plaintiff had suffered a mild traumatic brain injury.
The plaintiff alleged that the forklift had been improperly loaded and negligently operated by the defendant's employee. Up until the eve of the trial, the defendant asserted that the plaintiff was contributorily negligent by helping to attach the bundles of pipe to the forks of the forklift in a dangerous manger. The plaintiff had no recollection of the accident. Two days before trial, the defendant admitted liability, and the case was tried on the issue of damages. The jury deliberated for approximately three hours and rendered a verdict in the amount of $1.285 million.
Turning point during trial: Russell recounts that "up until March 2005, the defendant believed that the plaintiff was contributorily negligent. They believed that they had a witness that saw the plaintiff acted negligently. I deposed that witness, and he didn't say that; he said something quite the opposite. Two days before trial, the defendant stipulated on the issue of liability, [and] the case was tried on the issue of damages."
#17 - $1.28 MILLION
Motor vehicle negligence
Capozza v. Johnson, et al.
Hampden Superior Court, No. 01-0274
Date of verdict: Jan. 29, 2005
Plaintiff's attorneys: Perman Glenn III and Nancy C. Snyder, Law Office Perman Glenn III, Springfield
Status of verdict: Plaintiff has received $30,000, so far.
Description of case: On Dec. 1, 2000, the plaintiff, Joseph Capozza, was struck by a car while walking on Main Street in West Springfield. Capozza sustained a broken tibia and fibula, head injuries, nerve problems in his shoulder and a bruised liver. Capozza testified that he required four subsequent surgeries on his leg, and that he suffered a diminution of his earning ability.
Capozza, who claimed that he was in the crosswalk at the time of the accident, argued that the defendant, Nicky Johnson, negligently operated the vehicle, and that the person who leased the vehicle negligently entrusted it to Johnson. Johnson denied any negligence and contended that Capozza did not experience any serious problems during recuperation and rehabilitation. The jury awarded $1.5 million and considered Capozza 15 percent comparatively negligent.
Turning point during trial: Glenn says it was "when the plaintiff took the stand and testified. [His] testimony was very strong and had a large impact on the jury. He came across very well, he was believable, and was able to describe in detail the pain and suffering he had as a result of the accident."
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