$25M verdict poses tough questions for COA

August 10, 2016

Hearing arguments about a case that resulted in what may be among the largest awards for loss of consortium, the Indiana Court of Appeals repeatedly questioned what amount of damages is too much and when a jury’s decision should be overturned.

Counsel asking that the multimillion-dollar verdict for a wrongful death claim be tossed maintained the jury’s award was based solely on emotion rather than economic facts. The opposing attorney held up precedent that cautioned appellate courts from second-guessing jurors’ decisions.

The case, Maintenance Dynamics, et al. v Patricia Amsden, 45A05-1504-CT-00017, was argued July 27 before Judges James Kirsch, Rudolph Pyle III and Patricia Riley. During the trial in Lake Superior Court, Patricia Amsden asked for at least $14 million, but the jurors came back with $25 million in damages. The National Law Journal cited the verdict as one of the top 100 in 2015.

Amsden filed the wrongful death claim after her husband, Phillip Amsden, 63, was killed while fixing a flat tire along Interstate 65 in November 2010. He was inflating a tire on a semi-trailer disabled on the side of the road at 11:40 p.m. when Jeffrey Cleary drove his Land Rover into Amsden’s service truck, crushing him against the box trailer.

Cleary was found to have a BAC of 0.24. He was later convicted of operating a motor vehicle with a BAC over 0.15, a Class B felony, and sentenced to 14 years. He appealed his conviction to the Indiana Supreme Court in 2015, arguing his double jeopardy protections were violated, but the justices affirmed.

Patricia Amsden filed a wrongful death lawsuit against Cleary; his employer, Maintenance Dynamics; and the two bars where he drank alcohol the day of the accident, Country Lounge and Giovanni’s. Following the February 2015 trial, the six jurors divided the award according to fault with Cleary being liable for $10 million, Maintenance Dynamics for $2.5 million, Country Lounge for $7.5 million and Giovanni’s for $5 million.

After the ruling, Country Lounge, Maintenance Dynamics and Cleary filed motions for correct error. Giovanni’s did not seek relief from judgment. The defendants claimed the verdict was the result of the admission of improper evidence and “highly prejudicial” jury instructions. In denying the motions, Lake Superior Judge Bruce Parent held that none of the defendants offered anything other than the size of the verdict to show they were unduly prejudiced.

“There is no allegation that this award was based upon consideration of any improper element such as liability insurance, and the Court felt that the award, while significant, was within the parameters that the unique evidence related to the death of Phillip Amsden and the result of that death upon Patricia Amsden,” Parent wrote in his April 2015 order.

Putting a price on loss

At the center of the Court of Appeals argument was what information the jury used to arrive at $25 million.

Kopka Pinkus Dolin partner Deborah Kapitan, representing Country Lounge, contended the evidence presented played upon the jurors’ sympathy. The “excessive verdict” was based on their emotional reaction rather than any calculation of Phillip Amsden’s life expectancy or future wages.

Riley questioned why the Court of Appeals should supplant its judgement for the jurors. They weighed what was put before them and determined what loss of consortium as worth, she said.

Kapitan responded when a verdict goes beyond even $1 million a year for the life expectancy of the decedent, it indicates the jury considered other factors.

“That’s your judgment,” Riley countered. “… What is the difference between your judgment of $1 million or their judgment of $25 million?”

Kapitan replied the evidence presented led to a verdict in which every dollar was based on passion and sympathy.

Kirsch interjected, “Isn’t that true of consortium claims in every case where there’s a loss of spouse? … I don’t know what economist is going to come in and quantify the monetary value of the loss of a spouse. So it’s always a very gray area for a jury.”

“I understand this doesn’t lend itself to mathematical certainty, I get that,” Kapitan responded. “But I’m saying when you leave this case with no hard evidence at all for the jury to consider and you leave it all to loss of consortium, it lends itself to this high verdict that’s based solely on passion and sympathy.”

Amsden’s attorney, Stephen Phillips, managing partner at Phillips Law Offices in Chicago, disputed the verdict was the product of emotion.

“It’s not as though we stood up and we just said look, he was killed by a drunk who got hammered in two bars and you should give her a lot of money,” he said. “… We spent a lot of time making sure they got evidence to avoid the claim this is all sympathy and we’re just up here tugging at your heartstrings.”

Kirsch queried Phillips on the $25 million verdict. Calling the award a “shocking proportion,” he asked what the Court of Appeals should consider if no other appellate court in Indiana or across the country has a loss of consortium claim for that amount.

Phillips pointed to the Indiana Court of Appeals ruling in Ritter v. Stanton, 745 N.E.2d 828 (2001). There, the jury awarded $55 million in compensatory damages for a personal injury claim that included $12 million for loss of consortium. The Court of Appeals held that when damages cannot be calculated, the jury has liberal discretion.

Pyle asked when stare decisis comes into play. “If no one in the United States, on a loss of consortium claim, has even approached $25 million, what does that say to us or what should that say to us in our common law system?”

Again, Phillips highlighted Ritter, which noted the courts should uphold the award if it falls within the bounds of the evidence of that particular case.

“… (T)he Supreme Court of Indiana has said multiple times that appellate courts and supreme courts and trial courts should be very, very, very loath to set aside a jury verdict unless they can find a really good reason,” Phillips said.

In her rebuttal, Kapitan argued the Ritter jury had hard numbers to use in its calculation for damages. She also pointed to the U.S. District Court for the Southern District of Indiana’s 2011 opinion in Knierim v. U.S. Government Dept. of Navy, 802 F.Supp.2d 965, which calculated the loss of love and affection as worth $75,000 per year.

Separate settlement

In a separate court action related to the 2010 fatality, Auto-Owners Insurance filed a motion for summary judgment, asking the federal court to find that the company had met all the obligations and duties it owed to its insured, Cleary. The Michigan-based business filed its case in the U.S. District Court for the Northern District of Indiana, Hammond Division.

Auto-Owners defended Cleary and his wife in the Amsden lawsuit. After the $10 million verdict against its client, the company deposited with the clerk of the Lake County Court the full limit of liability of $250,000 plus post-judgement interest for a total of $651,777.74.

Once the Cleary family and Amsden reached a settlement agreement, the Cleary defendants dropped their claim that Auto-Owners had an obligation to continue to provide a defense.

Senior Judge Rudy Lozano granted the motion June 15.•


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