Fred A. Bernstein

Is That Your Final Answer?

My life as a juror.

Published in California Lawyer, May 1, 2000

It was, I figured, an open-and-shut case. The defendant, a doctor, had failed to diagnose the appendicitis flaring through the patient's midriff and, instead, had sent him home with a pat on the tummy and instructions to take Maalox and Kaopectate. The plaintiff was a 25-year-old bodybuilder in enviable health; he hadn't just walked into the courtroom but swaggered. Still, the doctor's mistake had cost him: Because his appendix had ruptured, he had been in mortal danger for a couple of hours and had undergone exploratory surgery to rule out damage to important organs, and the scar from the surgery was as long and thick as a stubby pencil, not the thin pink line he would have had if the appendectomy had been performed in time. (I know this because, at a dramatic moment in the testimony, his attorneys asked him to unbutton his pants and push down the elastic waistband on his Calvins.)

As the evidence mounted, it became clear that the doctor had been inept but not malicious. And so, when the jury retired to deliberate (I was the foreman), it took no time at all to reach a verdict for the plaintiff. All we had to do was agree on damages. I said that I figured the plaintiff's excess surgery, lost wages, and incidentals ran about $5,000, and that the pain and suffering were worth twice that much. How about, I asked, awarding him $15,000? It seemed so logical that one juror, a grocery store owner, was already packing up to go.

Suddenly, there was a shriek. "The scar!" yelled a woman I had hardly noticed before. "You forgot to include the scar!" Startled, I said I hadn't forgotten the scar, but I didn't see how we could put a value on it.

"The scar is disgusting," said the woman. "His sex life is over." And then for emphasis: "He'll never have sex again."

And how much did this woman want to award? "A million," she said. "Maybe a million and a half."

Several jurors agreed with my valuation (more or less) -- the grocer didn't care what we gave so long as we finished up quickly. One juror agreed with the scar lady "A million seems about right," he said. And then he turned to her. "But if you want me to go higher, I will."

The two jurors at the high end accused those of us at the low end of being cheap. They even saw our lunch orders, which didn't use up every penny of the meal allowance, as proof. "It isn't your money." they told us, referring to both our sandwiches and the verdict. I explained calmly (though probably not as calmly as I remember) why I thought $20,000 -- okay maybe $40,000 or even $50,000 -- was enough. I was taking the plaintiff's injuries seriously; it's just that I didn't think they warranted a Lotto-size payout. It was, after all, everyone's money.

The scar lady, in turn, explained that anything under a million dollars was an opportunity lost. Think of how the money would change the plaintiff's life, she said. He could buy a new car! He could buy a yacht! He could travel the world and send us postcards!

But, she reminded us, he'll never have sex again.

It took nearly 20 hours of discussion for me and a few compatriots to bring the big spenders down to earth. Each day we ordered sandwiches (ours spare, theirs overflowing), talked about what we wanted to accomplish with the verdict, and held our ground. Finally, bored, frustrated and furious, the high rollers succumbed: $75,000. We had dragged them down, kicking and screaming, from 20 times as much, and it had taken all the strength that we could muster.

When we were done and waiting to be brought into the courtroom, the security guard, who I imagine had spent decades standing outside jury room doors, asked about the case that had kept us talking for so long. I told him precisely this much: "A young guy" I said, "went to his doctor in the middle of the night. The doctor gave him Maalox and Kaopectate, but a few hours later his appendix burst. There was no permanent damage, but it was painful for the guy, and he lost a few days' work and had a bigger scar than he would have had. The doctor's not a bad guy," I added, "just a geezer."

"Four days for that?" asked the guard. He whistled. Then he shrugged. "Sounds to me like about 70, maybe 75 thousand."