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Washington Examiner
January 5, 2006

Jurors don't always know all the facts

If you want to understand why tort reforms are needed — and which kinds are needed — the jury box offers an instructive vantage point. So take a seat and we'll call a couple of hypothetical cases.

Case 1: A customer accidentally breaks a jar of mayonnaise on the floor of a supermarket. Before a store employee cleans up the spill, another customer slips on it, falls and breaks her hip. She then sues the store to recover $75,000 in medical expenses.

You've heard the evidence. Now you're in the jury room and a debate arises.

One juror notes, "The plaintiff's medical bills have already been paid by insurance, so we shouldn't award any damages. Our job is to 'make her whole,' not make her doubly whole."

Another juror says, "Yes, but we shouldn't let the store off the hook. They were negligent, after all, in not cleaning up that spill right away or at least putting a warning sign there."

"True," says the first juror, "but if anyone needs to be made whole now, it's the plaintiff's insurance company, not the plaintiff herself. Let the insurance company sue the store."

That is a fair debate, one jurors should have in cases like this. But in 26 states — including Maryland, Virginia and D.C. — you couldn't have that debate because the "collateral source rule" prohibits the defense from telling you that the plaintiff has already been compensated for his or her losses.

This rule has two unintended consequences:

First, by making double compensation more likely (once from insurance or some other source, and again from a jury), it encourages lawsuits.

Second, it offends the commonsense notion of justice raised by the first juror: Someone might have a valid claim against the store for negligence, but it isn't the plaintiff because she has already been compensated for her medical expenses.

For such reasons, some two dozen states have changed the rules to allow jurors to be told about collateral source payments.

Case 2: Mr. Smith negligently runs a stop sign and Mr. Jones smashes into him, sustaining serious injuries. He sues for $100,000 in medical expenses.

In this case, Jones' main injuries are to his face, which hit the steering wheel upon impact. In the jury room, another debate ensues.

"Jones shouldn't get the entire $100,000," says one juror, "because he wasn't wearing a seat belt."

"That doesn't matter," says another. "Smith caused the accident. He ran a stop sign."

"Yes," says the first, "but if Jones had been wearing his seat belt, his face wouldn't have hit the steering wheel. That's what caused his facial injuries. If negligence matters for Smith, it should also have some weight for Jones."

This is another fair debate. The National Highway Traffic Safety Administration has found that seat belts reduce the risk of fatal injuries by 45 percent and moderate to critical injuries by 50 percent. Further, NHTSA reports that although only 20 percent of all drivers and passengers don't wear seat belts, that minority makes up 58 percent of those killed in car accidents. And in some cases, it can be determined virtually beyond doubt that a person's injuries are entirely due to failure to wear a seat belt.

Yet despite the proven effectiveness of seat belts, 32 states don't allow juries to consider failure to wear one as negligence when setting damages — even though federal law requires automakers to install seat belts, and every state except New Hampshire requires drivers and passengers to use them.

Juries can often be faulted for reaching arbitrary verdicts. But in cases like these, it is the law that is at fault. Fair verdicts in civil cases usually rest on commonsense ideas of justice.

A person injured by another's negligence deserves compensation, but not double compensation. And when a plaintiff's own negligence contributes to his injuries, jurors should be allowed to consider that fact in determining damages.

In denying relevant facts to jurors, rules such as those illustrated above make it impossible to reach fair verdicts. The blindfold belongs on Lady Justice, not on the jury.

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