Greater Greater Washington

Bus sideswipes disabled woman's van, jury awards $8,500

In August 2010, a Metrobus sideswiped a van with a disabled woman inside. Last week a jury heard the woman's lawsuit against WMATA, and awarded the woman a small sum$8,500. I was one of the 8 jurors.


Photo by dctim1 on Flickr.

The woman's attorney, clearly disappointed, asked for every juror to stand up one by one and affirm their agreement with the award amount. However, it was contempt for the woman's attorney, and the physician the attorney had sent her to, that led to most of the debate in the jury room.

The jury deliberations were tense at times, as jurors hearing the same testimony drew very different conclusions. A picture of what Washington is becoming formed amidst jurors' arguments, and I wondered if a jury 30 years ago might have decided the case differently.

Before the trial, I told the judge that I had written several articles on Metro, some critical, for a local blog. I suspected that WMATA's attorney would strike me from the jury as a result. However, after describing the topics of each article to WMATA's attorney, both attorneys declined to strike me from the jury.

After trials are completed, jurors are permitted to discuss or not discuss the trial as they choose.

What happened?

We heard the testimony of the plaintiff, Cynthia Lee, a 57-year old African American woman who lives in southeast DC. Ms. Lee has lived on disability income for 23 years since a 1990 car accident left her in constant pain. She has had several neck surgeries, and is seen regularly by orthopedic surgeons and pain specialists at GWU.

She lives with her fiancée of 7 years, Calvin Thomas, and his 7-year old granddaughter. A home health care aide helps her on weekdays. One juror said that "she receives better medical care than our troops coming back from Iraq."

The morning of the crash, she took MetroAccess from her home to GWU where her doctor discussed her continued pain and suggested she resume physical therapy. Afterwards, her fiancee picked her up from GWU in their van and they drove towards Northeast DC to pick up his granddaughter from his sister's house.

As they crossed North Capitol Street on K Street, a D8 bus headed westbound on K Street turned left onto North Capitol. Mr. Thomas slowed his van in the intersection as cars in front of him slowed down, but the Metrobus kept turning and sideswiped the van.

The physical damages to the Metrobus and the van were slighta little paint scraped off and a small dent. It was hard to imagine that the force of the impact could have even injured passengers. The police were called, but no police report was filed.

Ms. Lee visited the emergency room at Washington Hospital Center the next day, complaining of pain following the accident, and received a CT scan. Five days after the accident, she returned to her orthopedic surgeon at GWU who assured her the rods and screws in her neck from previous surgeries were still in place.

An ambulance-chasing attorney, or a woman asserting her rights?

At some point during the week after the accident, Ms. Lee came into contact with a personal injury attorney. The attorney referred Ms. Lee to a different orthopedist in Ft. Washington, MD.

The orthopedist in Ft. Washington had an initial consultation with Ms. Lee, which cost $400. He then ordered $1,600 worth of X-rays that Washington Hospital Center had not ordered. He prescribed physical therapy of heating pads, cold packs, and electric stimulation, to be administered in his office.

3 weeks after the accident, the Ft. Washington orthopedist ordered a $2,000 MRI that showed no injury. A month and 7 physical therapy appointments later, Ms. Lee reported that her pain had not subsided, and the physical therapy ended.

Nonetheless, the Ft. Washington orthopedist brought her in for 6 additional follow-up visits from October 2010 through January 2011, none of which resulted in new diagnoses or prescriptions. By that point, Ms. Lee said her pain had subsided to pre-accident levels. The total bill? $10,200.

Judge Maurice Ross gave us clear instructions. If we found WMATA negligent in the accident, and found the accident to be the proximate cause of Ms. Lee's damages and injuries, then we must quantify reasonable medical costs, inconvenience to Ms. Lee, and any pain and suffering Ms Lee. endured.

Was WMATA negligent?

After all of the closing arguments, the jury began their deliberations with a vote on the first question. Did WMATA negligence cause the collision? 5 jurors voted yes, while 3 voted no.

I voted yes, and was surprised at the vote. Wasn't it obvious that WMATA caused the accident? Hadn't WMATA's attorney even said that he would defer to the jury's decision on negligence, that his objection was to the amount of any damages?

The 3 dissenting jurors said this was a "no-fault" accident. There was hardly any property damage at all. The parties should have just walked away.

We objected that "no-fault" accidents aren't actually no-fault, the parties just declare them to be "no-fault" to keep their insurance premiums from rising. The dissenting jurors ultiamtely agreed, and the jury assigned negligence to WMATA with an 8-0 vote.

Did the accident cause damages to Ms. Lee?

The jury then voted on whether the accident was the "proximate cause" of any injuries or damages, a vote that went down 1-7. I was the 1.

Many of the 7 jurors voting yes argued that the nudge to the van wouldn't have injured passengers, but I argued that Ms. Lee was not just any passenger. She was more susceptible to injury than most passengers. In the words of Metro's own orthopedic surgeon expert witness, she was "a compromised host."

The 7 jurors argued Ms. Lee was clearly being used by her attorney and the attorney's physician, and that no award money would ever make it to Ms. Lee anyway.

I countered that no evidence had been provided contradicting Ms. Lee's claim to be in more intense pain following the accident. WMATA didn't challenge her claim to be in greater pain following the accident. So what basis does the jury have for saying she is lying?

All 8 jurors then agreed, some reluctantly, that they must conclude that Ms. Lee suffered injuries caused by WMATA. But they were hesitant to award more than a small award, convinced that all the money would go to Ms. Lee's attorney and the Ft. Washington physician to whom she had been referred.

Jury debates the award as a picture of Washington emerges

We read through the Ft Washington physician's $10,200 invoice line-by-line. Some jurors were comfortable ordering Metro to pay for all of his costs except for the last 6 visits to his office. That added up to about $8,500. Others were opposed to any such sum.

One juror in opposition argued that it was a minor incident, and it was completely unfair for taxpayers to have to pay $8,500 for a scrape of some car paint.

I argued to the jurors in opposition that that's precisely why motor vehicle transportation is so dangerousit's unforgiving to the slightest infraction. You can glance at your phone while driving and cause multiple fatalities.

Another juror who opposed any award in the several thousands of dollars argued that we should consider what society owes Ms. Lee, and that in his judgment society owes her little. You can't quantify pain, and anyway she has been in pain for years for which society was already doing a lot.

I challenged the jurors in opposition to remember the question that we had all been asked by Ms. Lee's attorney before the trial: could we set our personal views on tort reform aside and decide on a verdict based on the judge's instructions? We had all answered yes to this question.

Our job was to assign objective values to these things, not to decide what society owed Ms. Lee or to send a statement to the judicial system with a small award.

Another juror said in frustration that he had always paid for his medical costs through college to this day, and taxpayers shouldn't have to pay Ms. Lee's medical costs.

Ultimately, the only figure we could agree on was $8,500 for her medical costs. I could have supported a larger award, as it made little sense to me to find medical costs reasonable but assign no value to the pain for which those medical costs were incurred.

Others were clearly unwilling to award a penny more, and I agreed that quantifying pain and suffering would be difficult. Ms. Lee's attorney had asked her no questions about her suffering and the consequences of the pain for her life, so we had little actual evidence on which to base an award for suffering or inconvenience.

Did the jurors' backgrounds inform their views?

The jury consisted of 5 white men, 2 black women and 1 white woman. The 2 black jurors spoke very little. 95% of the deliberations happened among the 6 white jurors.

It was clear that some jurors viewed Ms. Lee through a lens stereotyping much of Washington, an African-American in Southeast DC pulling every string in the system for her personal benefit while contributing little.

During the trial, though, a very different picture appeared to me. Ms. Lee dropped out of school in 11th grade, and still managed to become trained as a Certified Nursing Assistant and Home Health Aide. She worked in both professions until the age of 34, when the catastrophic crash in 1990 resulted in screws and rods in her neck.

She lived a quiet life for the next 20 years, in near-constant pain. She is on daily narcotics to this day to manage her pain, which she places at a 9 on a scale of 1-10. If not for her personal injury attorney, I'm confident that Ms. Lee would have filed no case against WMATA.

When you imagine walking in the shoes of someone like Ms. Lee, you realize that one man's ambulance chaser is another man's right to counsel. One man's medical expert for hire is another man's right to get a second opinion.

A jury, randomly selected from DC residents, and its deliberations provide a snapshot of how our city is changing, and how we solve bigger problems.

Sometimes I fear that the Washington that we are becoming has little interest to walk in the shoes of others, or even imagine what it would be like to do so. As DC grows, I hear too many who see our growth as a rejection of our past and of the people who built DC in the decades since Home Rule. We don't see ourselves as one city.

It was hard, on this jury, not to imagine how the jury deliberations would have been different 10 years ago, 20 years ago, 30 years ago. Can we grow and evolve as a city, and still see other residents as "in this together" with us?

Ken Archer is CTO of a software firm in Tysons Corner. He commutes to Tysons by bus from his home in Georgetown, where he lives with his wife and son. Ken completed a Masters degree in Philosophy from The Catholic University of America. 

Comments

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You are supporting additional compensation? To what end? It was a minor traffic accident, so punitive damages would change nothing. I can definitely sympathize with someone who has chronic pain, but that was not caused by this accident and she was receiving care already. Pain and suffering should be awarded when negligence or malice was the cause. This country is way too litigous.

by Alan B. on Feb 21, 2013 11:31 am • linkreport

Thanks for sharing this. I was on a jury a few years ago in a first degree felony murder case, and it was a 6-6 black/white jury. The differences in how each group saw evidence and motives was really surprising to me.

by Beth on Feb 21, 2013 11:34 am • linkreport

I can understand where the woman is coming from, but it is not clear (and she gave no testimony) how the accident changed her life. Also, did she actually pay her medical bills? One would think that someone else paid (such as her car insurance). It would then be up to her car insurance company to try to recoup the expenses they incurred, not the woman. In the end, I think the jury saw this case correctly: the attorney was trying to milk the situation to get money for himself from the WMATA. If there were something more, the attorney presented little evidence of it. With the evidence presented, this case never should have gone to trial--it should have settled for a reasonable figure, and it only went to trial so the attorney could try to collect a piece of a pain and suffering award (for which again the attorney presented little evidence), and I'm sure from start to finish the victim was egged on by the attorney. I agree with the jury that the attorney should not be reward for this. Its tempting to say this case is all about the victim, but it is not--it is about the victim's attorney, who was clearly not being reasonable giving the evidence produced at trial.

by Alan on Feb 21, 2013 11:43 am • linkreport

I was on a jury in DC about 12 years ago with a very similar case. A UPS delivery man with documented prior back issues claimed his double parked UPS delivery van had been sideswiped by a Metro Bus. Further, he claimed that he had been in the back of the van, sorting packages at the time.

I was one of only two white jurors, judge, defendant bus driver, and plaintiff were all Aftrican-American. During trial it was obvious that plaintiff was not well educated but being led around by his attorney and supposed doctor.

We did not award anything to plaintiff. The jury expressed sympathy for the plaintiff but did not find any credible evidence that the back issues were due to the sideswipe (which left only faint scrapes on the van).

So, I don't think that even 10 years ago the jury would have found differently in your case.

by marie on Feb 21, 2013 12:14 pm • linkreport

You've got to wonder what the settlement offer was from WMATA before trial. 10K?

Also, more on how easy it would be control medical costs with "death panels." 10K in medical bills? Insane.

I had to defend ss/disability programs over Christmas to the medical part of the family -- it only about 150B a year -- but we would be much better off it as a society if it was in the $25b/year range. Pretty easy to do as well since there is lot of abuse by patients and the medical community.

by charlie on Feb 21, 2013 12:14 pm • linkreport

What is not clear to me is whether this was a hit and run accident, or if the bus stopped to see if Ms. Lee was OK. I know Metro buses have sheared off my father's side mirror at least twice, so reckless driving doesn't come as any great surprise.

by Chris on Feb 21, 2013 12:23 pm • linkreport

related to my previous comment:

http://www.theatlanticwire.com/business/2013/02/fbi-declares-war-scooter-store/62383/

by charlie on Feb 21, 2013 12:27 pm • linkreport

Very interesting piece. The topic of the composition of DC juries is fascinating, and has as much to do with DC's failure to impose any sanctions for failing to comply with a jury summons as the changing demographics in the city. (As an aside, Ken, set your calendar - in January 2015, you'll be getting another jury summons.)

I obviously didn't hear the testimony, but these two sentences in the recap stood out to me:

I could have supported a larger award, as it made little sense to me to find medical costs reasonable but assign no value to the pain for which those medical costs were incurred.

and

She lived a quiet life for the next 20 years, in near-constant pain. She is on daily narcotics to this day to manage her pain, which she places at a 9 on a scale of 1-10.

It seems as if Ms. Lee was in constant, significant pain before the 2010 accident. In addition, apparently there was no physical evidence of additional damage caused by the 2010 accident, and no testimony that she was in additional pain post 2010. If that's the case, there doesn't seem like there was a basis for an award for pain and suffering.

Even if she did testify that she was in additional pain after the accident, the jury is obligated to make a credibility determination (since pain cannot be objectively measured) regarding her testimony. It appears that the other seven jurors may have found any testimony of additional pain not credible, based on the minor nature of the accident, and the Washingotn Hospital Center examination. I'm curious, Ken, if this was discussed, and if so, why you came out differently than the other jury members.

by dcd on Feb 21, 2013 12:51 pm • linkreport

@charlie
Really, "abuse" accounts for 80+% of ss/disability spending? Right.

Anyway, WMATA's driver screwed up here so they deserve to pay for additional pain and suffering this woman incurred from the accident. You're right, Ken that due to her condition even this minor accident could cause lots of injury/pain.

That said, the whole process between the lawyer/doctor just leaves a bad taste. The injury lawyer sends her to some doctor of his who orders a bunch of unnecessary x-rays that show what the hospital already found: no there was no further major injury to the patient and any additional pain could be dealt with via her already existing treatment. Having found that the doctor orders up more treatment, of course payable to him.

I certainly feel for this woman and her condition. If her regular doctors felt that extra treatment was necessary WMATA should pay for that. If a lawyer felt that WMATA should pay for damages then they should have sued for that. But working with an outside doctor to stick this woman with an unnecessary bill and then suing so he and his doctor bud get paid is just slimy.

by MLD on Feb 21, 2013 1:21 pm • linkreport

While I do not agree that there is 80% abuse, there is clearly something wrong. If you compare the US medical system to ANY other, the US is about twice as expensive and gets worse results. Prescription drugs are only a few percent of medical costs, so most of the $$ is going to medical services. We do not know how much is wasted/abused, because the law makes it illegal to publish usage of medical services by doctor, doctors do not provide upfront estimates of costs, and multiple players have conflicts of interest. Malpractice insurance only makes all of this worse.

by SJE on Feb 21, 2013 1:45 pm • linkreport

Here's what I see:

1. Woman feels pain after accident and goes to GWU hospital where they say they can't see anything wrong with her

2. Rather than get a second medical opinion, she goes to a personal injury lawyer

3. The lawyer sends her to the doctor he works with

4. Doctor performs thousands of dollars of treatments that produce no results

Covering thousands of dollars of medical procedures that only the lawyer's doctor deemed necessary and that a very reputable hospital and her treating physician did not deem necessary, seems sufficiently generous.

Actually, I'd be more inclined to award her money for the pain but nothing for medical bills from the lawyer's doctor. That said, are you going to award money to every person who claims pain after an injury even if there is no supporting medical evidence?

by Falls Church on Feb 21, 2013 2:13 pm • linkreport

A couple of reactions:

1) This strikes me as a classic example of a jury acting practically rather than purely rationally. From the facts presented it seems unlikely that whatever injuries she has were caused by the collision with the bus. A rational jury decision would be either no liability, or liability with more significant damages.

2) Ms. Lee has not been lucky in her life. However, a collision with a WMATA bus should not be converted into a winning sympathy lottery ticket borne at taxpayer expense.

by ah on Feb 21, 2013 2:49 pm • linkreport

Interesting questions, but I wouldn't read too much into the jury interactions. I was on a jury just under 2 years ago, that had a similar racial makeup to yours (but 12 deliberating jurors, not 8 like yours), with the added layer that the majority of the jurors were not just white, but between the ages of 27-35. It was a complex case, involving multiple counts of attempted murder, carjacking, gun charges, and the added layer of an insanity defense.

Before we began deliberations we were pretty careful about not talking about the case, so as we began deliberations I was worried that some of the things you raised would happen. I was pleasantly surprised that they did not. To a person, every member of the jury had paid close attention, was quite clear in their thinking and reasoning, and really seemed to making an effort to be as fair as possible. Of course life experience and subjectivity came into play at some level, we were all people still. But I think everyone was impressed by the care that the others took to be sure we were doing things the right way.

An attorney I know said that his experience with juries is that they often go one of two ways- either everyone comes together and works really well together (like mine), or people are divided, and retreat to their regular thinking, and it becomes quite contentious. My suspicion is that things other than race and class often determine which way they go- how ready people are to make the time commitment, their general ability to concentrate (watching testimony can be very difficult over long periods of time, it can be very boring and repetitive), and other factors. Not to say race and class issues wouldn't necessarily be the dividing line- I am sure they are at times. But other basic human issues are a huge part of the equation.

By the way, the attorney described the united juries as having a "civic glow" because they were so proud of themselves and their role in the system. We definitely felt that a bit, I think.

by DCJoe on Feb 21, 2013 3:03 pm • linkreport

Whether this is a private company or a public one shouldn't enter into the calculus of whether she should receive damages.

You either think that she was harmed and is owed something or think that she is not owed anything. "At taxpayer expense" is irrelevant. If a company loses some of its profits then those cannot be taxed and that is also a taxpayer expense.

by MLD on Feb 21, 2013 3:03 pm • linkreport

I guess I don't understand why the issue of medical expenses is relevant. Presumably the costs of her care would have been recovered from WMATA by her health insurance company, even if that's Medicare disability. What health bills was she actually liable for? Certainly one could claim that WMATA owed some "pain and suffering" costs, considering the nature of the victim, but in this case, $8-$10k sounds reasonable.

by JustMe on Feb 21, 2013 3:25 pm • linkreport

It sounds like exactly what it is...someone falling victim (or purposely trying to game the system) to an ambulance chasing lawyer.

This guy probably promised her a six figure settlement, and now has to deal with splitting the $8,500 with her.

by Drr on Feb 22, 2013 9:03 am • linkreport

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