Portsmouth civil juries known for writing big checks

On the afternoon that Circuit Court would close for the Christmas holiday, a civil jury was sent to deliberate.

The seven jurors took with them dozens of exhibits, pages of jury instructions, and their memories of almost three weeks of testimony.

They were back in about two hours with a $25 million verdict for a seaman who said he’d been raped by South Korean police while on shore leave in 2008. The award shocked some local attorneys.

A person who can still work and “who can see and has all their arms and legs … that gets $25 million is perfectly ridiculous,” said Daniel R. Warman, a Norfolk lawyer.

Some attorneys chalk it up to Portsmouth – a city with a long-standing reputation for sympathetic, working-class juries. The $25 million verdict, one of the largest in the state, could further that image.

In this case, the seaman had sought $50 million from his former employer, shipping company Maersk Line Ltd. He said he was not provided medical care after the alleged rape.

On Tuesday, Maersk Line attorneys will go back to court to ask the judge to set aside the jury’s verdict and grant a new trial. The law allows for judges to do so when damages awarded are excessive.

The name of the plaintiff, a 50-year-old Mathews County man, has been withheld; The Virginian-Pilot does not identify alleged victims of sexual assault.

He testified during the trial that he had gone to a restaurant with four shipmates and started to feel strange after taking shots of the Korean drink soju. He told the others he needed to leave, he testified, and a crew member winked and patted him on the shoulder. He felt afraid, so he ran, he said.

Sometime after that, he said, he was punched, choked and repeatedly knocked unconscious by four men who appeared to be police officers. They forced him to drink alcohol, and three of them raped him, he said. During his testimony, he said he did not remember everything right away, but things came back to him later in pieces.

Capt. James W. Walker testified that the man came back to the Maersk Rhode Island in the early morning and admitted he was intoxicated. Walker said he asked about the seaman’s black eye, and the man answered that he’d been in a “scuffle with the police.”

The seaman’s account changed, Walker said, when he realized his blood alcohol content would be tested. He testified that the man said, “What if I told you that they held me down and poured liquor down my throat, would you still breathalyze me?”

Then the man asked whether he’d still be tested if he said the officers pulled down his pants and violated him with a bottle, the captain said.

Both times, the captain said he asked whether that happened and the man did not answer.

Walker testified that the man refused to be taken to a doctor. Later that morning, the man was fired for intoxication, taken to a doctor and sent back to the United States, the captain said.

At the hearing Tuesday, Maersk Line lawyers will argue that the verdict was inconsistent with evidence, as well as excessive.

The lawyers’ motion estimates that the state’s average large verdict for personal injury and wrongful death cases was $3.47 million in 2007-09, based on Virginia Lawyers Weekly reports.

The motion points to other cases, similar in that the plaintiffs were diagnosed with post-traumatic stress disorder, where settlements were reached from $100,000 to $300,000. The examples included a 70-year-old woman who was allegedly sexually assaulted by a wheelchair operator at Dulles Airport and a FedEx delivery man who was injured in a dog attack.

The Maersk Line attorneys also wrote in their motion that the size of the award in the case indicated that jurors must have held the shipping company responsible for what happened ashore or felt that it wrongfully terminated him. The court had ruled before trial that Maersk Line was not responsible for the alleged rape and that the plaintiff had no cause of action for being fired.

The Maersk Line motion says the plaintiff suffered no permanent physical injuries and that he returned to work as a seaman with another company.

During the trial, psychiatrists and psychologists hired by the plaintiff’s attorneys said the seaman suffered depression and PTSD. A psychologist hired by the defense, though, said tests showed the man likely was malingering – faking or exaggerating symptoms for personal gain.

Linda Francis, the jury foreman, said jurors for the most part felt it did not matter whether the assault occurred.

“They felt the man asked for help and he wasn’t given enough of that help, regardless of whether or not the background story was true,” she said.

Warman, the Norfolk attorney, sees the recent verdict as an aberration that will not “up the ante” in Portsmouth but acknowledged that others disagree with him.

“Some of the bigger verdicts in the state have come out of Portsmouth,” Norfolk attorney Philip N. Davey said.

In 2002, a Portsmouth jury came back with a $60 million award against a corporation whose driver was involved in an accident that left a man with severe brain damage and other injuries.

The state Supreme Court sent the case back for a new trial on the issue of damages, but the two sides settled rather than retry the case. The settlement was still higher than most verdicts at the time, according to Jeffrey Breit, an attorney for the plaintiff.

Long before that case, Portsmouth juries had captured the eye of lawyers representing railroad workers, according to Davey.

Unlike most other workers, seamen and railroad employees can sue employers in personal injury cases under federal law for negligence. Twenty-some years ago, if a company did business in Portsmouth, a lawyer could file suit there, regardless of what state the incident occurred in.

It was well-known that a case filed in Portsmouth was more likely to produce a verdict for the employee, said Wiley F. Mitchell, an attorney who retired from Norfolk Southern Corp. in 2001.

“And the verdict was much more likely to be higher than it would be in any other portion of the state,” said Wiley, who was responsible for casualty litigation for the railroad company for almost 20 years.

In fact, Mitchell said, the cost of verdicts in personal injury cases was a “significant factor” the railroad considered when deciding to give up its operations in Portsmouth in 1989.

In 1991, state lawmakers put the brakes on that runaway litigation. The law was changed to allow judges to dismiss suits brought by out-of-state railroad workers injured in other states.

Still, if there is a way to try a civil suit in Portsmouth, plaintiffs’ attorneys are “happy to be there,” Warman said.

In the Maersk Line case, a jury of two men and five women handed down the $25 million verdict. The Virginian-Pilot was able to reach four jurors, including an alternate.

Francis, the foreman, said some jurors wanted to give the plaintiff more than the $50 million he sought.

Francis said she and at least one other juror fought to lower the damages because the jury had been instructed to do so if it found that the seaman’s negligence contributed in some way to the injury.

Crew members who had been with the plaintiff that night described a man who drank and became offensive. Two female cadets said that when they left a restaurant to catch a van back to the ship, he stormed off.

Francis said she felt the man’s behavior on shore was a contributing factor. Juror Rudolph Hockaday Jr. disagreed.

“That man wasn’t in here for his actions or what he might have done, being drunk,” Hockaday said.

The case, he said,was about “a company being negligent.”

Hockaday added that “it happens all the time.”

“Companies destroy families all the time, and nobody ever does anything about it,” he said.

“What’s going to stop these companies from being negligent and doing the things they do unless they be punished by digging in their pockets and taking money from them?” he said.

After closing arguments, Deborah Brown learned she was an alternate juror and would be excused while the others deliberated.

She said she was disappointed when another juror called to tell her what happened.

“I don’t mind someone getting money, even that much money, if I felt like they had proven the case that this man was really injured and the captain was really negligent,” she said.

But for her, the evidence was not there, she said.

The juror who called her wasn’t happy with the verdict either. She agreed to talk about the case, but only on the condition of anonymity. The woman said she felt outnumbered and is still so upset about the verdict she does not want her name associated with the jury.

“I’ve been haunted by the whole thing,” she said. “I hope they do appeal.”