Given all of the attention the Rachel Barton case has received in the media, it was no surprise that the Tribune weighed in with an editorial March 3 after the jury rendered its sizable verdict. And, given the Tribune’s repeated bleating about the need for tort reform, it was also no surprise that your editorial board used this case as a soapbox to beg for legal reforms, despite the fact that this ploy has failed before.
It was both surprising and troubling, however, to read the claim that “there is no curb on such heart-tugging persuasion” in Illinois. Critics of the Barton award have loudly decried the jury as “crazy.” You add your considerable voice to the dissidents and say that the verdict was based on emotion and say that it is “no surprise” that a jury would find this injured victim “more sympathetic” than the railroad that maimed her.
Let us not forget that the estimable C. Barry Montgomery represented Metra in the Barton case. Mr. Montgomery is a pre-eminent defense lawyer. During his career, he has persuaded scores of juries to send sympathetic plaintiffs out of court without any kind of compensation. I know of what I speak, because Mr. Montgomery persuaded a jury to award less than $200,000 to a quadriplegic air traffic controller whom I represented. Was that verdict based on sympathy for the pool manufacturer? Or did Mr. Montgomery have a better legal and factual argument for the jury to consider?
Defendants in Cook County win approximately 50 percent of all cases tried by jury. In the celebrated fields of malpractice and product liability, their winning percentage is considerably higher. But when Mr. Montgomery or one of his colleagues is successful in obtaining a “not guilty” verdict for an auto manufacturer, a hospital or a construction company, we never hear the media bemoan the fact that another big corporation won another multimillion-dollar civil case. But it happens every week in the Circuit Court of Cook County.
I also find it galling that you would stoop to argue on behalf of the “poor railroad” now that they were found responsible by this jury, after you made editorial decisions to attempt to sell papers with your unprecedented coverage of the trial. Day after day the Tribune ran articles about the trial. On several occasions, these articles were prominently featured on the front page. You helped build the sensational nature of this trial and now seek to capitalize upon it with a renewed call for tort reform.
Finally your analysis of what this verdict would have looked like under the unconstitutional tort-reform legislation is remarkably misleading. You claim that the award would have been $3.4 million and the jury would have been able to increase the punitive damage to the extent that the total could have reached $8.8 million. You quite conveniently forget that the tort reform-bill specifically held that the jury would not be informed of the cap on non-economic damages. The Barton jury awarded $28 million for Rachel’s disability, disfigurement, pain and suffering. Under tort reform this amount would be arbitrarily reduced by the trial judge, without the jury’s knowledge, to $500,000. Similarly the jury would not have been informed that its punitive damage award could be three times as large as her income and medical losses.
In your editorial you protest that the jury’s verdict was based upon “arbitrary calculations” of her pain and suffering. I suppose you think that a reduction of damages to $500,000 for this young woman who suffered an unimaginably traumatic amputation to one leg while suffering hideous and disabling injuries to the other leg is enlightened. It seems pretty arbitrary to me.
