$60M Nuclear Verdict for CA Hotel Guest Who Had An Aneurysm
A nuclear verdict is a jury verdict that is outrageous and based on anger and fear. In an Orange County case, O’Malley v. Diamond Resorts Management, a hotel guest who had an aneurysm while staying at the hotel was awarded $60 million by a jury. This nuclear verdict reflects a longstanding and alarming pattern—plaintiff’s attorneys are encouraging jurors to award excessive sums of money, far beyond fair compensation for plaintiffs. But things did not have to end this way; it is possible different trial strategies could have changed the outcome of the case.
O’Malley v. Diamond Resorts Management:
On March 8, 2022, an Orange County, California, jury awarded $60 million to a plaintiff who suffered a cerebral aneurysm at one of defendant’s hotels.[i] Plaintiff was staying at the hotel alone when she suffered an aneurysm rupture. Plaintiff was left incapacitated, laying on the floor of her hotel room.[ii]
After attempting to reach his wife for several hours, plaintiff’s husband called the hotel and requested a wellness check.[iii] In response, a maintenance man went to plaintiff’s room, opened the door, looked into the room, did not see anyone, and reported that plaintiff was not in the room.[iv] The maintenance man did not turn on the light or go into the room.[v] The maintenance man had not been trained with the hotel’s procedure for performing a wellness check, such as turning on a light or walking into the room as his view of the floor of the room was blocked by furniture where the plaintiff was laying.[vi] Several hours later, plaintiff’s husband drove to the hotel and found his wife laying on the floor barely breathing.[vii] Plaintiff now suffers from memory loss, such that she cannot recall something she experiences seconds earlier and requires care 24/7.[viii]
During trial, the plaintiff argued had the maintenance worker been trained in performing wellness checks and/or thoroughly inspected the hotel room, plaintiff would have received medical attention sooner and the effects of the aneurysm would not have been so severe.[ix] The defense argued that plaintiff’s aneurysm was severe such that earlier medical care would not have affected the end result.[x]
The trial was described as contentious and highly polarized, with the hotel vigorously contesting everything – liability, causation, and damages.[xi] After a review of the closing arguments, it seems possible the defense could have obtained a different outcome using different trial methods. The jury decided 12-0 on liability and 10-2 on damages, with the two holdouts wanting to award plaintiff more money.[xii]
How To Stop Nuclear Verdicts®
Clearly, the O’Malley jury did not side with the defense. In the book Nuclear Verdicts: Defending Justice for All, Bob Tyson recommends the defense accept responsibility, give a defense number, argue pain and suffering, and use a trial theme to counter a plaintiffs’ reptilian tactics and gain the upper hand with a jury.[xiii]
In O’Malley, instead of accepting responsibility, the defense attacked the injured plaintiff questioning whether she was at the hotel cheating on her husband.[xiv] This tactic clearly backfired. The defense could have acknowledged the maintenance man had not been trained on the hotel’s procedure for performing a wellness check and had he been trained he would have found plaintiff. By accepting some responsibility, a jury’s emotions are deflated, which in turn, may prevent an outrageous award of damages.
Give a Number
Defense counsel in O’Malley repeated plaintiff’s number of $66 million, referred to the cost of therapeutic aides for the plaintiff at $6 million, and mentioned the cost of a residential care facility for plaintiff of about $1 million.[xv] These three references are the extent of defense counsel’s discussing a damages number during closing arguments.
To counter a plaintiff’s number, which is likely to be mentioned throughout a case, defense counsel should give a defense anchor number and mention it often through all stages of trial. This will inform jurors there is a dispute as to the value of the case. Even in a case such as O’Malley, where it appears the defense was seeking a defense verdict, a number should be given to the jury and it should be given often.[xvi]
Argue Pain and Suffering
In O’Malley, the defense did not challenge plaintiff’s pain and suffering; instead, the defense argued plaintiff’s damages would have been the same regardless of when plaintiff was found.[xvii] Plaintiff’s counsel painted a picture to the jury that plaintiff’s husband could not afford to care for his wife after she suffered the aneurysm, and the jurors had no other information to compare this to.[xviii] As a result, the jurors followed the lead of plaintiff’s counsel, and then some, overcompensating plaintiff and her husband.
Have a Theme
Defense counsel could have adopted a trial theme the jurors could relate to. For example, in a case such as O’Malley, where a hotel is sued by a plaintiff who was injured, a trial theme could be that the hotel is a respite from reality, where hotel guests can visit for undisturbed peace and tranquility. A theme such as this might have provided Diamond Resorts with an alternative explanation for its maintenance man not entering plaintiff’s room to investigate.
Nuclear Verdicts® are being awarded by juries at an alarming rate, but with the right trial strategies, they can be defused. Defense counsel can deflate the emotions of a jurors who can be easily swayed to be sympathetic to plaintiff. Instead of going along for the ride with plaintiff strategies, defense counsel should take charge directing the jury to where the defense wants the jury to go.
[i] Biren Law Group, Biren Law Group Wins $60M Verdict for Woman Who Suffered Aneurysm at Hotel, March 8, 2022.
[xiii] Tyson, Robert F., Nuclear Verdicts: Defending Justice for All, 2020. Law Dog Publishing, LLC.
[xiv] O’Malley vs. Diamond Resorts Management, OCSC Case No. 30-2015-00771021-CU-PO-NJC, Reporter’s Transcript of Proceedings, 2/28/2022, 3199: 17-24.
[xv] O’Malley vs. Diamond Resorts Management, OCSC Case No. 30-2015-00771021-CU-PO-NJC, Reporter’s Transcript of Proceedings, 3/1/2022, 3401: 1-5, 3404: 13-19, and 3405:7-12.
[xvi] Tyson, Robert F., Nuclear Verdicts: Defending Justice for All, 2020. Law Dog Publishing, LLC., at 46-49
[xvii] Biren Law Group (March 8, 2022) Biren Law Group Wins $60M Verdict for Woman Who Suffered Aneurysm at Hotel