Law Review: Lack of guidelines can lead to huge jury awards

More than other witnesses, it was the mother-in-law's impassioned testimony that sealed the verdict.

There were reams of testimony from experts on the technical causes of the downed utility wire that killed Carrie Goretzka, a young mother of two girls, on June 2, 2009, at her home in Irwin, Pa., 30 miles east of Pittsburgh.

But it was the account of JoAnn Goretzka, who spoke of seeing her daughter-in-law engulfed in smoke and flames the day the line came down, that had the most power.

During the three-week trial before an Allegheny County Court jury, she painted a vivid picture of Carrie Goretzka's suffering and the huge, irreparable loss her death has been for daughters Carlie and Chloe.

"Those girls will never, never have their mother, and that is just not right," JoAnn Goretzka testified.

In the end, the jury returned a $109 million verdict against the utility, West Penn Power, the largest personal-injury verdict in Pennsylvania history.

But it was neither the size of the award nor the riveting emotional testimony that made this case so compelling. What was so unusual about the Goretzka case was that it offered powerful arguments for both sides in the debate over the costs and efficacy of the tort system.

Business groups and the plaintiffs bar have been battling over the fairness of the system for decades. I vividly remember in the late 1980s, as insurance companies pushed their version of tort reform through the New Jersey Assembly, plaintiffs lawyers staging news conferences with wheelchair-bound accident victims.

For years, critics of the tort system have been complaining about escalating verdicts. Its defenders, the nation's plaintiffs lawyers, say that courts offer the only redress for victims, and that the threat of a huge judgment is a powerful incentive for corporate America to behave.

But in this case, both sides had a point.

Carrie Goretzka died under horrific circumstances. In June 2009, after a power line came down on her property, she went outside to call the utility company to report an outage. Defense lawyers suggested she stumbled onto the line, while the family's Center City-based lawyer, Shanin Specter of Kline & Specter P.C., asserted the line fell on her as she tried to phone the power company.

But it really didn't matter. Lines had fallen twice before on the Goretzka property. West Penn Power made no effort to find out why, nor did it adhere uniformly to its own standards for splicing the power lines, a possible cause of the failure.

George Coulston, the jury foreman, with a doctorate from Yale University in engineering and applied science, said the jury was convinced the utility should have found a way after the second line collapse to make sure it didn't happen again.

The state Public Utility Commission only instituted action against West Penn after the lawsuit was filed, and after Specter prodded regulators with evidence of the company's inaction. Even the company appeared to lose confidence toward the end. Although it appealed the $109 million jury verdict, it ended up settling the case for nearly the same amount, $105 million, on Wednesday.

If the case makes clear that the civil-justice system can serve as an important check on corporate wrongdoers, it also shows there is little structure for juries in establishing what defendants should pay for causing harm.

The charge by Common Pleas Court Judge Michael Della Vecchia to the jury covered broad principles.

But nowhere in the judge's instructions was there anything approaching a guidepost on noneconomic damages. It was left to the jury. Jury foreman Coulston said later that jurors tried to come up with a punitive-damage sum that would cause financial pain for West Penn, but that the process was subjective.

Huge jury awards undoubtedly are an incentive for firms like Kline & Specter to pursue technically difficult cases.

Its fee, if the settlement is approved by the court, will be one-third, or $35 million. A portion of that will go to the Pittsburgh-area lawyer who referred the case to Specter, Maurice Nernberg.

Plaintiffs lawyers say that such referral fees typically amount to one-third of the entire fee, which, in this case, would be $11.5 million.

Altogether, not a bad payday.