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Author: Sheila Baker

Last Updated August 29, 2022

Does Acceptance of Responsibility Affect a Jury’s Award?

 

A nuclear verdict is outrageous and based on fear and anger, not the law.  More Nuclear Verdicts™ are being handed down at a higher rate in every state.  These verdicts threaten unjust outcomes for defendants around the country.  An internet search will produce numerous articles and references to excessive verdicts by California juries, and the question now seems to be how much the next nuclear verdict will be for, not whether there will be another nuclear verdict.

The case below resulted in the second highest verdict every awarded by a Fresno county jury.[i]   On October 5, 2021, the jury awarded $49.8 million.  In this case, defendants failed to accept responsibility.  What would have happened if they had?

 

Merlo v. American Ambulance, et al.

The Fresno County jury awarded Nicholas Merlo, a 39-year-old mortgage broker, $39.8 million, and his wife $10 million stemming from a medical malpractice incident that occurred while Mr. Merlo was transported by American Ambulance paramedics.[ii]  On March 14, 2018, Mr. Merlo was receiving treatment for gastrointestinal issues at a surgery center.  While under anesthesia, he had to be intubated and taken to the hospital.  During the transport, the paramedics readjusted Mr. Merlo’s breathing tube as it appeared not to be working on both lungs.  The American Ambulance paramedics could not reintubate Mr. Merlo.  By the time he was reintubated at the hospital, Mr. Merlo suffered cardiac arrest and a severe lack of oxygen, which caused brain damage and left him in a persistent vegetative state.[iii]

During the trial, the defendants denied liability, and the paramedics claimed the receiving hospital emergency room and doctor were negligent in failing to timely intubate Merlo.[iv]  In fact, six doctors testified that if the tube had not been pulled by the paramedics, Mr. Merlo would not have suffered brain injury.[v]

The jury found American Ambulance and three employees negligent and 100% liable.  The jury awarded Mr. Merlo $16 million for medical expenses and $3.8 million for past and future lost income.  They also awarded him $20 million for pain and mental suffering and the “loss of enjoyment of life.”  Kaci Merlo, Mr. Merlo’s wife, was awarded $10 million for the “loss of her husband’s love” and companionship.[vi][vii]

 

An Alternative Defense Strategy May Have Resulted in a Lower Verdict

Robert F. Tyson, in his book Nuclear Verdicts: Defending Justice for All, outlines certain principles defense counsel should follow to avoid exposing their clients to excessive damage awards that are plaguing defendants.[viii]

It is clear from review of the Merlo v. American Ambulance, et al. record[ix] that counsel for American Ambulance did not accept responsibility, as Mr. Tyson would suggest.[x]  As stated by Mr. Tyson in his book, the defense must care about the plaintiff – accepting responsibility makes that care evident and helps to defuse jury anger.[xi]  By taking responsibility, the defense can make everyone seem reasonable and shift the focus to the actions of all parties actions and not the emotions of the jury.

In addition to accepting responsibility, defense counsel should always provide the jury with a number for the damages award to counter an enormous damages ask.[xii]   The defense number should be mentioned early in voir dire and referenced throughout the case so the jury is just as comfortable with the defense number as it is with the plaintiff’s highly inflated number, which plaintiffs’ counsel will undoubtedly repeat over and over again.  Likewise, defense counsel should counter plaintiff’s claim of pain and suffering with its own position on how the incident impacted the plaintiff.

 

Takeaway:

Defense counsel should consider adopting the principles set forth in Robert F. Tyson’s Nuclear Verdicts: Defending Justice for All.  One of the important principles to follow is accepting responsibility in the jury’s presence to defuse juror anger and help the focus at trial remain on the actions of all the parties. When the other core principles described by Mr. Tyson are also utilized by defense counsel, defense counsel can work to minimize the frequency of Nuclear Verdicts™.


 

 

 

[i] Hoggard, Corin (October 6, 2021) “Nearly $50 million jury verdict for Kingsburg father injured by American Ambulance – ABC30 Fresno” https://abc30.com/fresno-county-jury-verdict-american-ambulance-injury/11091113/; Merlo, By and through his Conservator and Guardian Ad Litem, Merlo v. Bassi, CRNA; American Ambulance; Portillo; Frier; Schneider, Westlaw, JVR No. 2112010004, 2021 WL 5767818 (Cal. Super.) (Verdict and Settlement Summary)

[ii] Merlo, By and through his Conservator and Guardian Ad Litem, Merlo v. Bassi, CRNA; American Ambulance; Portillo; Frier; Schneider, Westlaw, JVR No. 2112010004, 2021 WL 5767818 (Cal. Super.) (Verdict and Settlement Summary)

[iii] Hoggard, Corin (October 6, 2021) “Nearly $50 million jury verdict for Kingsburg father injured by American Ambulance – ABC30 Fresno” https://abc30.com/fresno-county-jury-verdict-american-ambulance-injury/11091113/.

[iv] Merlo, By and through his Conservator and Guardian Ad Litem, Merlo v. Bassi, CRNA; American Ambulance; Portillo; Frier; Schneider, Westlaw, JVR No. 2112010004, 2021 WL 5767818 (Cal. Super.) (Verdict and Settlement Summary)

[v] Hoggard, Corin (October 6, 2021) “Nearly $50 million jury verdict for Kingsburg father injured by American Ambulance – ABC30 Fresno” https://abc30.com/fresno-county-jury-verdict-american-ambulance-injury/11091113/.

[vi] Merlo, By and through his Conservator and Guardian Ad Litem, Merlo v. Bassi, CRNA; American Ambulance; Portillo; Frier; Schneider, Westlaw, JVR No. 2112010004, 2021 WL 5767818 (Cal. Super.) (Verdict and Settlement Summary)

[vii] Notably, under the Medical Insurance Compensation Reform Act (MICRA), the $30 million awarded to Mr. Merlo and his wife for pain and suffering exceeds the statutory limits of $250,000 per Plaintiff.  (See, Code of Civil Procedure section 3333.2(b)). Therefore, the award would be reduced by the judge to $20.3 million.

[viii] Tyson, Robert F. Nuclear Verdicts: Defending Justice for All. San Diego, LA Dog Publishing, LLC, 2020.

[ix] Merlo, By and through his Conservator and Guardian Ad Litem, Merlo v. Bassi, CRNA; American Ambulance; Portillo; Frier; Schneider, Westlaw, JVR No. 2112010004, 2021 WL 5767818 (Cal. Super.) (Verdict and Settlement Summary)

[x] Tyson, Robert F. Nuclear Verdicts: Defending Justice for All. San Diego, LA Dog Publishing, LLC, 2020.

[xi] Tyson, Robert F. Nuclear Verdicts: Defending Justice for All. San Diego, LA Dog Publishing, LLC, 2020.

[xii] Tyson, Robert F. Nuclear Verdicts: Defending Justice for All. San Diego, LA Dog Publishing, LLC, 2020.