Grounding Plaintiffs Sky-High Untethered Damages Claims at Trial
Introduction
Over the years, many defense attorneys handling personal injury cases have likely experienced or are well-acquainted with the following scenario:
After an accident, a plaintiff is diagnosed with a concussion (or another injury), receives minimal treatment, and has low medical expenses. At trial, they seek only non-economic damages, excluding past medical expenses. As the defense attorney, you argue against this, but the court allows it. The plaintiff presents evidence of permanent injuries and life expectancy tables, demanding millions for non-economic damages. Their case hinges on sympathy rather than facts. This tactic, known as untethered damages, can and has persuaded juries in awarding inflated and unfounded damages awards.
The exclusion of past medical expenses poses a significant challenge for defense attorneys, as it prevents the jury from adequately assessing the plaintiff's case, which has led to disproportionately large verdicts. In December 2024, I defended a case in Snohomish County Superior Court during a six-day jury trial. Considering the plaintiff's claims of ongoing brain injury symptoms and medical expenses amounting to less than $25,000, I expected that the plaintiff’s attorney would adopt a similar untethered damages strategy immediately before the trial commenced. Based on my assessment, I prepared a pocket motion to include the past medical expenses and filed it with the Court on the first day of trial, arguing their relevance for general damages as well as future treatment. I based my arguments on cases from other jurisdictions that have previously addressed these issues and Washington Court of Appeals, Division 2 case, Patterson v. Horton, as it relates to consideration for future treatment.[1]
Plaintiff’s Past Medical Expenses Are Relevant to the Jury’s Evaluation of the Nature and Extent of Plaintiff’s Injuries and Damages
The Virginia Supreme Court has repeatedly held that the cost of medical care is a relevant and important consideration for the jury even where the plaintiff does not seek to recover for such costs. Specifically, the Court has held that medical bills were relevant because they tended to establish the probability that the plaintiff experienced pain and suffering as a result of the accident.[2] The Court also held that evidence of medical bills was relevant to establish the inconvenience that the plaintiff experienced because of the defendant’s negligence.[3]
Similarly, the Alaska Supreme Court has held that evidence of the amount of medical bills is relevant to the severity of a plaintiff’s injury.[4] The Georgia Supreme Court has held that evidence of the amount of medical bills may be admissible on a claim of pain and suffering to show the seriousness of the injury.[5] The Montana Supreme Court likewise held that medical bills received by a tort victim can be relevant evidence of issues such as the nature and severity of the injuries.[6]
Although Washington state does not currently have case law on this particular issue, these cases were briefed for their persuasive authority and to document the record in the event of an appeal after a significant verdict.
Plaintiff’s Past Medical Expenses Are Relevant for the Jury’s Consideration of Any Damages for Future Treatment
The Supreme Court of Iowa held that “Where the evidence in a personal injury action shows the value of medical services already rendered the injured person, and that such service will be required in the future, the jury may determine from the past service, and its value, what may reasonably be required in the future.”[7] Similarly, the Supreme Court of Arkansas held that it was not speculation and conjecture to calculate future medical expenses where a jury had before it a history of medical expenses that had accrued as of the date of trial.[8] In short, “the cost and frequency of past medical treatment . . . may be used as a ‘yardstick for future expenses.’”[9]
In my recent Snohomish County Superior Court case, the trial judge determined that past medical expenses are relevant to demonstrate costs for future treatment and damages, even if the plaintiff is only seeking non-economic damages. The trial judge primarily relied on our Court of Appeals, Division 2 case, Patterson v. Horton, where that court held, in part, that medical bills were admissible to prove costs for future treatment.[10] The court further held that “…the bills could properly be used to create a presumption that there will be, at a minimum, a nominal cost for such future treatment.”[11]
In my case, I argued that the plaintiff’s own expert testified to future treatment recommendations, therefore, past medical expenses are relevant to infer future treatment costs even if the plaintiff is only seeking non-economic damages. Referencing the findings and holding in Patterson, the trial judge held that the plaintiff’s past medical expenses, totaling just under $25,000, were admissible. The trial judge agreed that the inclusion of past medical expenses were relevant to infer future treatment costs, given that the plaintiff's expert testimony included recommendations for future treatment.
Conclusion
During the trial, one of my medical experts reviewed the undisputed bills, was prepared to testify to the reasonable and customary charges and confirmed the undisputed past medical expenses before the jury. During closing arguments, the plaintiff’s counsel requested the jury to award 10 million dollars. However, I argued that this amount was excessive based on the past medical expenses incurred and asked that the jury return a verdict for $100,000. Since the jury was aware of the plaintiff’s past medical expenses being under $25,000, I felt equipped to counteract the plaintiff’s sky-high demand and influence the jury's perception of the case in the opposite direction, ultimately resulting in a verdict for $175,000.
About the Author
Margaret Stambaugh is a Senior Staff Attorney at Law Offices of Ryan T. Probstfeld in Seattle. She has practiced in civil litigation for the past ten years after graduating from Seattle University School of Law in 2014. Currently, she practices in state courts across Washington and Oregon. You can reach her at margaret.stambaugh@thehartford.com or (206) 292-7878.
Over the years, many defense attorneys handling personal injury cases have likely experienced or are well-acquainted with the following scenario:
After an accident, a plaintiff is diagnosed with a concussion (or another injury), receives minimal treatment, and has low medical expenses. At trial, they seek only non-economic damages, excluding past medical expenses. As the defense attorney, you argue against this, but the court allows it. The plaintiff presents evidence of permanent injuries and life expectancy tables, demanding millions for non-economic damages. Their case hinges on sympathy rather than facts. This tactic, known as untethered damages, can and has persuaded juries in awarding inflated and unfounded damages awards.
The exclusion of past medical expenses poses a significant challenge for defense attorneys, as it prevents the jury from adequately assessing the plaintiff's case, which has led to disproportionately large verdicts. In December 2024, I defended a case in Snohomish County Superior Court during a six-day jury trial. Considering the plaintiff's claims of ongoing brain injury symptoms and medical expenses amounting to less than $25,000, I expected that the plaintiff’s attorney would adopt a similar untethered damages strategy immediately before the trial commenced. Based on my assessment, I prepared a pocket motion to include the past medical expenses and filed it with the Court on the first day of trial, arguing their relevance for general damages as well as future treatment. I based my arguments on cases from other jurisdictions that have previously addressed these issues and Washington Court of Appeals, Division 2 case, Patterson v. Horton, as it relates to consideration for future treatment.[1]
Plaintiff’s Past Medical Expenses Are Relevant to the Jury’s Evaluation of the Nature and Extent of Plaintiff’s Injuries and Damages
The Virginia Supreme Court has repeatedly held that the cost of medical care is a relevant and important consideration for the jury even where the plaintiff does not seek to recover for such costs. Specifically, the Court has held that medical bills were relevant because they tended to establish the probability that the plaintiff experienced pain and suffering as a result of the accident.[2] The Court also held that evidence of medical bills was relevant to establish the inconvenience that the plaintiff experienced because of the defendant’s negligence.[3]
Similarly, the Alaska Supreme Court has held that evidence of the amount of medical bills is relevant to the severity of a plaintiff’s injury.[4] The Georgia Supreme Court has held that evidence of the amount of medical bills may be admissible on a claim of pain and suffering to show the seriousness of the injury.[5] The Montana Supreme Court likewise held that medical bills received by a tort victim can be relevant evidence of issues such as the nature and severity of the injuries.[6]
Although Washington state does not currently have case law on this particular issue, these cases were briefed for their persuasive authority and to document the record in the event of an appeal after a significant verdict.
Plaintiff’s Past Medical Expenses Are Relevant for the Jury’s Consideration of Any Damages for Future Treatment
The Supreme Court of Iowa held that “Where the evidence in a personal injury action shows the value of medical services already rendered the injured person, and that such service will be required in the future, the jury may determine from the past service, and its value, what may reasonably be required in the future.”[7] Similarly, the Supreme Court of Arkansas held that it was not speculation and conjecture to calculate future medical expenses where a jury had before it a history of medical expenses that had accrued as of the date of trial.[8] In short, “the cost and frequency of past medical treatment . . . may be used as a ‘yardstick for future expenses.’”[9]
In my recent Snohomish County Superior Court case, the trial judge determined that past medical expenses are relevant to demonstrate costs for future treatment and damages, even if the plaintiff is only seeking non-economic damages. The trial judge primarily relied on our Court of Appeals, Division 2 case, Patterson v. Horton, where that court held, in part, that medical bills were admissible to prove costs for future treatment.[10] The court further held that “…the bills could properly be used to create a presumption that there will be, at a minimum, a nominal cost for such future treatment.”[11]
In my case, I argued that the plaintiff’s own expert testified to future treatment recommendations, therefore, past medical expenses are relevant to infer future treatment costs even if the plaintiff is only seeking non-economic damages. Referencing the findings and holding in Patterson, the trial judge held that the plaintiff’s past medical expenses, totaling just under $25,000, were admissible. The trial judge agreed that the inclusion of past medical expenses were relevant to infer future treatment costs, given that the plaintiff's expert testimony included recommendations for future treatment.
Conclusion
During the trial, one of my medical experts reviewed the undisputed bills, was prepared to testify to the reasonable and customary charges and confirmed the undisputed past medical expenses before the jury. During closing arguments, the plaintiff’s counsel requested the jury to award 10 million dollars. However, I argued that this amount was excessive based on the past medical expenses incurred and asked that the jury return a verdict for $100,000. Since the jury was aware of the plaintiff’s past medical expenses being under $25,000, I felt equipped to counteract the plaintiff’s sky-high demand and influence the jury's perception of the case in the opposite direction, ultimately resulting in a verdict for $175,000.
About the Author
Margaret Stambaugh is a Senior Staff Attorney at Law Offices of Ryan T. Probstfeld in Seattle. She has practiced in civil litigation for the past ten years after graduating from Seattle University School of Law in 2014. Currently, she practices in state courts across Washington and Oregon. You can reach her at margaret.stambaugh@thehartford.com or (206) 292-7878.
[1] 84 Wn. App. 531 (1997).
[2] See Barkley v. Wallace, 595 S.E.2d 271, 274 (Va. 2004).
[3] Parker v. Elco Elevator Corp., 462 S.E.2d 98 (Va. 1995).
[4] Luther v. Lander, 373 P.3d 495, 502 (Alaska 2016).
[5] Warren v. Ballard, 467 S.E.2d 891, 893 (Ga. 1996) (citing Melaver v. Garis, 110 Ga. App. 267 138 S.E.2d 435 (1964)).
[6] Meek v. Mont. Eighth Judicial Dist. Court, 349 P.3d 493, 495 (Mont. 2015).
[7] Scurlock v. Boone, 121 N.W. 369, 371 (Iowa 1909).
[8] Williams v. Gates, 630 S.W.2d 34, 36 (Ark. 1982); See also Seymour v. Carcia, 604 A.2d 1304, 1306-07 (Conn. 1992); Pratt v. Stein, 444 A.2d 674, 697-98 (Pa. Super. 1982).
[9] 2 M. Minzer, J. Nates, C. Kimball, D. Axelrod & R. Goldstein, Damages in Tort Actions § 9.55 [4], p. 9-80.
[10] Id. at 543.
[11] Id.