The headline started with the phrase “$109 Million Personal-Injury Award,” but two phrases from the article better summed up what really happened: “Mommy is on fire,” and “the power line that had killed her had collapsed in the family’s yard twice before, [but] no serious attempt was made to find out why the line failed.”
The Philadelphia Inquirer’s article on the recent verdict in the Goretzka v. West Penn Power Co. electrocution case is concise yet thorough, portraying the extraordinary lawsuit in an even-handed manner. The $109 million verdict has two components.
$48 million of the award was for compensatory damages, split between the “wrongful death” claim for her husband and her two little girls, and the “survival claim” representing the compensation she would have recovered had she lived. (More about that divide in this post on wrongful death damages.) The number is certainly at the top end of compensatory damages verdicts, but it is not surprising. Lawyers who have worked on a number of catastrophic injury and wrongful death cases spend a lot of time talking with physicians who provide expert testimony about the pain caused by various injuries, and few disagree that the two most painful experiences a person can suffer are electric shock and significant burns. Ms. Goretzka had both: 20 minutes of severe electrocution that caused her burns over 85% of her body, followed by three days in agony at the hospital. The article doesn’t say what she died from specifically, but under the circumstances, I assume infection, as burn victims tend to die from infection.
She suffered thus suffered pain almost beyond comprehension. The thought of it reminded me of the words of George Wilson, a Scottish chemist who had his foot amputated in 1843, before use of anesthesia:
During the operation, in spite of the pain it occasioned, my senses were preternaturally acute. I watched all that the surgeons did with a fascinated intensity. Of the agony it occasioned, I will say nothing. Suffering so great as I underwent cannot be expressed in words, and thus fortunately cannot be recalled. The particular pangs are now forgotten; but the black whirlwind of emotion, the horror of great darkness, and the sense of desertion by God and man, bordering close upon despair, which swept through my mind and overwhelmed my heart, I can never forget, however gladly I would do so.
$61 million of the award was for punitive damages, the subject of the article. That figure was reached through a surprisingly generous calculation: the jurors took one quarter of the company’s retained earnings after dividends and expenses, and awarded that.
(The article also reveals that, just prior to trial, the parties agreed to settle the lawsuit for $50 million and a commitment for the company to fix improperly installed electrical wires across Western Pennsylvania, but the company backed out the next day.)
But the article bothered me nonetheless, because it could leave a mistaken impression with readers. This case was, by any interpretation, extraordinary, and the presence of punitive damages was extraordinary as well. Punitive damages are one of the great bogeymen of tort reformers, who repeatedly point to verdicts like this and then claim that they are commonplace and destroying American business. Nothing could be further from the truth: punitive damages are barely even presented to the jury, even more rarely reported, even more rarely sustained on appeal, and even more rarely actually collected against the defendants.
A 2005 study by the Bureau of Justice Statistics noted that, in the mere 3% of civil cases that were resolved by a trial, punitive damages were awarded in fewer than 1% of typical tort cases, like negligence, product liability, and malpractice cases. (If intentional torts - like criminal assaults - are included, the figure rises to 3% of tort cases.) The study looked at Allegheny County specifically, and found that punitive damages were only even sought in 3% of civil cases, including intentional torts and fraud claims. Even when those criminal cases are included, the median punitive damages verdicts were still only $64,000.
That’s certainly my experience, as most of my cases don’t even involve punitive damages. But even in the big punitive damages case, the verdicts don’t necessarily translate into actual money paid. A few years ago I was co-counsel in a wrongful death trial in Philadelphia that resulted in a large verdict, including a $15 million punitive damages component. When all was said and done, after all of the appeals and bankruptcies, we collected not one penny of those punitive damages, and the defendant is still out there, doing business as usual, hurting people just the same.
So while I applaud the Inquirer from bringing attention to the awful facts of this case - and thus showing to the public how justified they were - I do wish they would have put more into explaining how rare punitive damages are.