The Jury, Episode 8: Pain and Suffering
May. 28th, 2008 07:48 amAt 9:00am we reassemble in the jury room. One of us is late, and the bailiff reminds us to not deliberate until he arrives. We're actually pretty good about that. He shows up at 9:15, and we start.
The topic is "Pain and Suffering."
We have one woman on the jury. She's strong-willed-- I think she and Omaha would get along well-- and holding her own against eleven guys. She points out that Miss T has a build similar to her own, with the same hips and so forth, only Miss T is significantly heavier. She makes the argument that if Miss T is working out every day like she says, she wouldn't be so overweight, she wouldn't be so heavyset. She'd be buff. She'd be exercised.
There are very strong feelings around the table. Some feel that Miss T is playing the victim too hard. Two men feel that, even so, should she be penalized, if she's really still hurting from the accident, for having a personality that latches on to the "victim" label? We have questions that can't be answered like when did she stop going to the gym, and so forth.
One thing that I make a comment about is how paltry all the evidence really is. Three witnesses for the plaintiff? She must have other friends, gym mates (every day? Heck, I've got guys at my gym I share my lunch hour with, and we've come to know each other's names over the past year!), co-workers who can testify as to her injuries. Where are other physician's opinions? Frack, for my knee alone I've got two physicians who can talk about it: the orthopedist and the physical therapist.
Yet this woman, who has migraines, has never seen a neurologist. She's never had physical therapy. She's never seen an orthopedist. There was testimony that she'd seen a chiropractor once or twice, where are those records? Over and over, she makes poor choices about her healthcare use.
We debate if she's faking. Is she maybe just achy and overplaying it? What can we say about her? We argue. What they're asking for is so small, in our collective experience, it's "obvious" (to some) she's not trying to get a windfall. We fret about how much is going to the attorneys, and how much the insurance companies will take back.
We read through the reports and little things jump out at us. There's a day in 2007 when Miss T goes to see Doc L and for the first time in three years reports a sudden spike in severe back pain, severe neck pain, and horrible migraines. The very next day there's a billing entry that Doc L gave his first deposition to the other side's attorney. Interesting, eh? Coincidence? Maybe. Evidence, certainly.
We really talk about the question of alternatives. I mean, remember yesterday we talked about how we were going to try and message that we disapproved of her chosen course of future treatments. For whatever she got through the pain and suffering part of the settlement, she could do whatever she wanted, and she can use it to pay for the treatments with Doc L. Some on the jury thought we should penalize the reward for her adamance in that direction; others thought we should not penalize her if we thought she needed further treatment if we believed she was still suffering from crash-related injuries.
We talk about the pain. About how long. One juror feels very strongly that we can't put a time limit on the pain. A few of us, myself included, argue differently: we have to. There's no infinite supply of money here. It's our duty to come up with a final dollar amount. It could be high, or low, but it has to be final.
I think his problem is that a majority of us are trying to come to grips with an algorithm of some sort to justify our decision, and he's not happy that we're haggling over whether or not we should consider the algorithm in terms of 24 months, or 30 months, or six years.
We find all these others. "Since stopping job, patient reports much improved with no reported significant pain." We talk about the injections: we agree that a bone-scraping injection has to be painful, it has to suck. But as I point out, if you've placed yourself into the hands of a trusted physician and after two years you're not getting better, he's going to go for more extreme things, and this injection procedure is Doc L's thing. It's what he does. He believes in it. It's his extreme thing.
"Okay," I say, abusing my position as presiding juror. "Every man in here who's ever been with a buddy and the two of you talked each other into doing something stupid. Getting really drunk. Driving stupid. C'mon. Nod your heads." There's some agreement. "This can happen between a doctor and a patient. Each reinforces the other until they reach this point. It can happen." The one woman on the jury says that women do it too. We discuss whether or not "the more painful the placebo, the more you'll believe in it, or can justify it?"
It's not about the length of time. Really. I try to convince them of that. We don't get to tell them our justification. It's just an amount of money. I draw a box on the board with lots of different figures. Koenig's $12K and $20K, then our $30K, $64k, $100k. We debate what the money is for because, as I say, "you can't eat it, or drink it, or sleep with it." But money is what we have to decide. Not time. Not companionship. It's a fascinating conversation. At one point, we talk about Frank, and we really do understand that at we cannot penalize him above and beyond what we feel he legitimately owes Miss T.
It's a bewildering conversation at times. Everyone's in it, and we all follow it, but it goes absolutely everywhere. I have to keep track of speaking order, pointing to one juror, then another: "You, then you, then you." Some on the jury want to reopen the questions of economic damages, to balance it all out. One guy suggests we just double the economic. His message: you've gotten halfway to well, so, here's another similar lump of cash and if you're smarter about it, you can get all the way.
Thank the gods there's a woman on the jury. She can say things about that woman no man can say.
We get nine people to agree to $25K. It seems harsh. The other three want $30K at least, and we play with the idea of $27,500. I protest that it just looks too much like a compromise. It doesn't fly. We re-read the rules again (I wish I'd kept my copy). The compromise makes nobody happy.
We vote again on $25K. This time we get ten votes. We add it all up, show the whole amount, about $50K all told with past medical and pain & suffering. We all whip out calculators and do the math again. There's a one dollar discrepancy between two groups: we identify a rounding error in the math around the bill and its interest.
We take a show of hands. We have ten. Thank goddess. There are two who hold out. And it's funny-- I understand and respect why. I don't agree with them at this point, but I understand. And it's over.
As the presiding juror, I fill out the form that will define two people's lives for a while yet to come. I sign it. We call the bailiff.
The topic is "Pain and Suffering."
We have one woman on the jury. She's strong-willed-- I think she and Omaha would get along well-- and holding her own against eleven guys. She points out that Miss T has a build similar to her own, with the same hips and so forth, only Miss T is significantly heavier. She makes the argument that if Miss T is working out every day like she says, she wouldn't be so overweight, she wouldn't be so heavyset. She'd be buff. She'd be exercised.
There are very strong feelings around the table. Some feel that Miss T is playing the victim too hard. Two men feel that, even so, should she be penalized, if she's really still hurting from the accident, for having a personality that latches on to the "victim" label? We have questions that can't be answered like when did she stop going to the gym, and so forth.
One thing that I make a comment about is how paltry all the evidence really is. Three witnesses for the plaintiff? She must have other friends, gym mates (every day? Heck, I've got guys at my gym I share my lunch hour with, and we've come to know each other's names over the past year!), co-workers who can testify as to her injuries. Where are other physician's opinions? Frack, for my knee alone I've got two physicians who can talk about it: the orthopedist and the physical therapist.
Yet this woman, who has migraines, has never seen a neurologist. She's never had physical therapy. She's never seen an orthopedist. There was testimony that she'd seen a chiropractor once or twice, where are those records? Over and over, she makes poor choices about her healthcare use.
We debate if she's faking. Is she maybe just achy and overplaying it? What can we say about her? We argue. What they're asking for is so small, in our collective experience, it's "obvious" (to some) she's not trying to get a windfall. We fret about how much is going to the attorneys, and how much the insurance companies will take back.
We read through the reports and little things jump out at us. There's a day in 2007 when Miss T goes to see Doc L and for the first time in three years reports a sudden spike in severe back pain, severe neck pain, and horrible migraines. The very next day there's a billing entry that Doc L gave his first deposition to the other side's attorney. Interesting, eh? Coincidence? Maybe. Evidence, certainly.
We really talk about the question of alternatives. I mean, remember yesterday we talked about how we were going to try and message that we disapproved of her chosen course of future treatments. For whatever she got through the pain and suffering part of the settlement, she could do whatever she wanted, and she can use it to pay for the treatments with Doc L. Some on the jury thought we should penalize the reward for her adamance in that direction; others thought we should not penalize her if we thought she needed further treatment if we believed she was still suffering from crash-related injuries.
We talk about the pain. About how long. One juror feels very strongly that we can't put a time limit on the pain. A few of us, myself included, argue differently: we have to. There's no infinite supply of money here. It's our duty to come up with a final dollar amount. It could be high, or low, but it has to be final.
I think his problem is that a majority of us are trying to come to grips with an algorithm of some sort to justify our decision, and he's not happy that we're haggling over whether or not we should consider the algorithm in terms of 24 months, or 30 months, or six years.
We find all these others. "Since stopping job, patient reports much improved with no reported significant pain." We talk about the injections: we agree that a bone-scraping injection has to be painful, it has to suck. But as I point out, if you've placed yourself into the hands of a trusted physician and after two years you're not getting better, he's going to go for more extreme things, and this injection procedure is Doc L's thing. It's what he does. He believes in it. It's his extreme thing.
"Okay," I say, abusing my position as presiding juror. "Every man in here who's ever been with a buddy and the two of you talked each other into doing something stupid. Getting really drunk. Driving stupid. C'mon. Nod your heads." There's some agreement. "This can happen between a doctor and a patient. Each reinforces the other until they reach this point. It can happen." The one woman on the jury says that women do it too. We discuss whether or not "the more painful the placebo, the more you'll believe in it, or can justify it?"
It's not about the length of time. Really. I try to convince them of that. We don't get to tell them our justification. It's just an amount of money. I draw a box on the board with lots of different figures. Koenig's $12K and $20K, then our $30K, $64k, $100k. We debate what the money is for because, as I say, "you can't eat it, or drink it, or sleep with it." But money is what we have to decide. Not time. Not companionship. It's a fascinating conversation. At one point, we talk about Frank, and we really do understand that at we cannot penalize him above and beyond what we feel he legitimately owes Miss T.
It's a bewildering conversation at times. Everyone's in it, and we all follow it, but it goes absolutely everywhere. I have to keep track of speaking order, pointing to one juror, then another: "You, then you, then you." Some on the jury want to reopen the questions of economic damages, to balance it all out. One guy suggests we just double the economic. His message: you've gotten halfway to well, so, here's another similar lump of cash and if you're smarter about it, you can get all the way.
Thank the gods there's a woman on the jury. She can say things about that woman no man can say.
We get nine people to agree to $25K. It seems harsh. The other three want $30K at least, and we play with the idea of $27,500. I protest that it just looks too much like a compromise. It doesn't fly. We re-read the rules again (I wish I'd kept my copy). The compromise makes nobody happy.
We vote again on $25K. This time we get ten votes. We add it all up, show the whole amount, about $50K all told with past medical and pain & suffering. We all whip out calculators and do the math again. There's a one dollar discrepancy between two groups: we identify a rounding error in the math around the bill and its interest.
We take a show of hands. We have ten. Thank goddess. There are two who hold out. And it's funny-- I understand and respect why. I don't agree with them at this point, but I understand. And it's over.
As the presiding juror, I fill out the form that will define two people's lives for a while yet to come. I sign it. We call the bailiff.
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