How to Turn Small Damages into Big Settlements

To anyone but a seasoned insider, public transportation accidents and incidents seem pretty simple, and their causation obvious. Neither is remotely the case. This is not to say that presentation should not strive for simplicity, when the facts permit it to. But at the analysis level, “keeping it simple” is often a strategy for losing.

In public transportation, what often passes for causation are merely symptoms of much deeper dysfunctions in policy-making, management, monitoring, enforcement, vehicle selection and specification, and where applicable, service provider selection. Some states have attempted to insulate their public agencies with immunity at these levels. But even in these states, there are many effective things that can be done. Most interestingly, these approaches do not depend on the size of the damages.

Without such approaches, it is often hard for plaintiffs’ attorneys to settle for even the value of the damages where they are small or moderate. There are at least three reasons for this:

1. Defendants, their counsel and (where not self-ensured) their carriers assume that plaintiffs’ attorneys will not spend the resources to mount an effective case where the direct damages are small.

2. Defendant’s counsel (particularly in public agencies) use cases with small damages for practice (often to practice against selective experts)

3. Defendants, their counsel and their carriers do not expect plaintiffs’ attorneys to have access to an expert familiar with these approaches, much less with actual experience helping attorneys employ them to achieve what some might characterize as astonishing results.

In nearly three dozen cases against his city’s transit agency, the experiences of TA President Ned Einstein illustrate these points:

  • He has gone to trial only in cases involving small damages.
  • Several years ago, engaged on a case where a transit bus mowed down a 21 year-old pedestrian in plain sight, this defendant stipulated to the negligence two days after he was designated. (Plaintiff’s counsel won $3.75M at trial “on the meds.”)
  • Plaintiffs’ attorneys in this sub-venue rarely obtain any discovery, forcing their experts to rely solely on two depositions and an often defendant-friendly police report.

One unfortunate reality that makes plaintiffs’ attorneys hesitant to commit resources to a case is that even victories in cases involving small damages can yield small damage awards — when they proceed to the trial stage:

  • A walker user was stranded in an SUV parked in the desert while its driver “had a smoke” in the lounge of the plaintiff’s dialysis unit. Rather than roast to death in the desert sun, she attempted to fetch her walker from the hatch-back, and tripped before reaching it, breaking her hip. With TA President Ned Einstein testifying on her behalf, the jury ruled in favor of the plaintiff. Yet the jury awarded her only $40,000.
  • In another case where an elementary school student broke his foot in an evacuation drill, TA President Ned Einstein again helped win a verdict in favor of the plaintiff. This jury awarded the plaintiff only $10,000.

In both these cases, there was little the plaintiffs’ attorneys could have done differently or better. Both attorneys were highly-skilled, worked hard, and spent what was needed to make their cases. But the defendant was not a giant corporation with a commercial agenda (see commercial agendas.com). Nor were there any ways to threaten the defendants with huge monetary risks at trial.

However, all cases do not encounter such constraints. In the public transportation field, a formidable illustration of this point was established in landmark class action lawsuit Bus Riders Union v. Los Angeles County Metropolitan Transportation Authority (1999) — a class action lawsuit where none of the tens of thousands of plaintiffs had been injured. But in ruling for the plaintiffs, the judge ordered the defendant to purchase 3200 additional buses.

With this precedent of BRU v. LACMTA in mind, TA President Ned Einstein helped one plaintiff’s counsel settle a 2004 case (not a class action case) for at least 500 times the damages. Sound impossible? Not remotely impossible:

A quadriplegic courier could not drive, and used the defendant’s 200-bus transit system for his same-day deliveries. No driver ever secured his motorized wheelchair. Always holding onto to something for dear life, he was unable to do so one day when the driver slammed on the brakes. The plaintiff’s chair slid forward and he bumped his head on the back of the passenger’s head in front of him. A few days later the large bump on his forehead receded and his headaches ceased. But his fear of an often-deadly wheelchair tipover did not (see wheelchairtipovers.com).

The plaintiff practically begged a savvy attorney to help make the bus system safe for him, by requiring its drivers to regularly secure his wheelchair. Serving as this counsel’ expert, Mr. Einstein randomly selected five of the 20 routes, flew to the West Coast, and rode-and-timed all five. He found the schedules of all five routes unreasonably tight: Few boarding passengers were given time to reach a seat or stanchion, no wheelchairs were ever secured, and each trip was filled with other stunts that compromised passenger, pedestrian and motorist safety in return for efforts to keep the routes on schedule, and to enable their drivers to catch their breath (see safetycompromises.com).

Armed with this evidence, and aware of the precedent of BRU v. LACMTA, this attorney amended the Complaint to ask the court to instruct the defendant to purchase an additional 15% more buses to its system. The roughly $10M in capital costs these 30 buses would have required, combined with their operating costs over the life of a Consent Decree, was far more than this community could risk. Instead, the defendant settled for $170,000, hired a full-time ADA coordinator, repaired or replaced the wheelchair securement equipment on every one of its 200 buses that needed it, and complied with every single provision in a page-and-a-half-long list of demands plaintiff’s counsel and Mr. Einstein prepared — in return for plaintiff’s counsel taking the demand for injunctive relief “off the table.”

It is not hard to envision how much easier this case would have been for a plaintiff who actually experienced significant injuries. More importantly, injunctive relief can be reasonable (e.g., make sure the defendant secures wheelchairs, make sure that safety features work, etc.). When the relief requested makes sense, defendants take enormous risks that even a conservative judge may grant. Worse still, if these risks materialize, they may be compounded almost exponentially, as every subsequent plaintiff’s attorney in the venue employs the same strategy as a template for his or her client injured on that system by the same or similar safety compromises. It is not hard to understand why many defendants would not wish to take these risks — particularly in a large transportation system.

All judges would clearly not grant such relief. And most plaintiffs’ attorneys do not believe that judges ever grant such relief. But the likelihood of this theory is rarely if ever tested. However, when they are tested in huge cases (BRU v. LACMTA), some judges ensure that justice triumphs. So it is not unreasonable for a defendant facing even a much smaller risk to not want to take it (as the tale above illustrates).

Realistically, a plaintiff’s counsel cannot bluff opposing counsel into such a position. Instead, plaintiff’s counsel must engage an expert who understands the dynamics of the industry that induced the defendant to compromise passenger, pedestrian and motorist safety. And both the attorney and his or her expert must convince opposing counsel of the plaintiff’s commitment to the case. But the one thing most defendants and their counsel fear most is effort. There ways to demonstrate this effort early in the case — often in ways that stop a case practically in its tracks, and curtail the expenditure of needless resources down the line.

Just as most experts are not attorneys, no attorney can reasonably be expected to understand all the intricate dynamics of an industry as genuinely (and deceivingly) complex as public transportation is. Frankly, many dynamics of public transportation services would be scandalous if the general public knew about them. Exposed to these dynamics at trial, and the risks they create for passengers, pedestrians and motorists, judges and juries might be astonished if not outraged.

As a salient example, the state, county or municipal agency responsible for the provision of non-emergency medical transportation (NEMT) service is not even a transportation agency. It is usually a healthcare agency. Would you feel comfortable if your community’s transit agency were placed in charge of hospital care? Regardless, to get the crazy mess that NEMT can often be out of their hair, most healthcare agencies engage a company within a small oligopoly of giant firms to serve as a “broker.” Then they compensate it so that it gets to retain all the funds that it does not spend on the actual provision of service by subcontractors. Worse still, that broker usually compensates its service providers via taxi-style rates, where (without a meter calculating idling or standing time) they make not a dime unless the vehicle is moving. Moreover, these service providers are forced to indemnify the broker (as well as the healthcare agency through which Federal funds for both the broker and its service providers flow.) With such dynamics, it is not hard to understand why drivers often do not spend five minutes securing some garden-variety manual wheelchair: In the same span of time, the vehicle can often travel enough to pay the driver’s bare-bones salary (usually paid on an hourly basis) for a full hour or more.

Obviously, these dynamics must be explained to the judge. And no judge is going to impose a remedy as complex as changing an institutional and operating arrangement, much less one very complex and deeply-entrenched. But a judge might order one of the defendants to do a better job — including monitoring its drivers, making sure its vehicles are compliant with regulations or making sure there are enough buses such that they can be operated safely. Such relief could translate into tens of millions of dollars that must be spent by the “lead agency” — a transit agency, a healthcare agency or a municipal government. And even if these contractual language between these agencies and their brokers and/or subcontractors sounds though they would indemnify the lead agency, even a large broker or service provider would argue that its contract did not envision covering the costs of an assessment of injunctive relief against the lead agency.

Further, when a municipal agency actually provided the service, there are no layers of private-sector companies to insulate it from liability, in theory or in practice. Further still, public immunity statutes do not necessarily exempt a public agency from the responsibilities of injunctive relief, irrespective of the costs of implementing it.

While compromises of passenger, pedestrian and motorist safety may take a variety of forms (see safetycompromises.com), and one often finds multiple compromises made, most of them stem from two basic problems:

1. The schedules are too tight.
2. The system or service earns no money when the vehicle is not moving.

As a matter of injunctive relief, the remedies for the safety compromises which stem from these two constraints are as straightforward as are the compromises (which are child’s play to prove for a genuine expert):

1. Purchase and deploy more vehicles.
2. Change the rate structure.

Both remedies are almost effortless to make at the policy-making, management and operating levels. However, they can involve enormous costs. Bearing enormous costs, these remedies present substantial risk to a defendant. Interestingly, this is especially true when the damages are small or moderate.

Every incident does not stem from the commission of a safety compromise. So such strategies are not realistic in many cases. But to place this likelihood in perspective, in more than half of the more than 600 lawsuits in which TA President Ned Einstein served as an expert, the vehicle was running behind schedule when the incident occurred. Of these incidents, the schedules were too tight in most of them.

One important point to recognize about these dynamics is the fact that the incident itself it most often only a symptom. The genuine causation almost always lies deeper, and is far more complex. This is why “keep it simple” may be a wise presentation strategy (when it is possible). But it is a counterproductive strategy for analysis. It often limits the value of a case to a fraction of its settlement value. But mostly, it deprives plaintiff’s counsel from seeing a path to the significantly higher damages that can accrue from recognizing and responding to the dynamics of the industry, and asking the court to change them rather than simply criticizing the symptoms — much less the respondeat superior symptoms.

Focusing only on an incident’s symptoms certainly involves far less work and less cost. But it generally leaves most of the potential winnings “on the table.” When the direct damages are small, ignoring the dynamics of a case, and failing to explore the incident’s underlying causation, risks plaintiff’s counsel losing money and/or the client getting next to nothing, even in a victory. Worse of all, focusing a case on the symptoms does not take the case into that special place where the real money lies — along with the real justice.

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