Don’t Use Erin Andrews's Case as a Call for Tort Reform.

Unless you’ve been living under a rock, you know by now that sports broadcaster, Erin Andrews, prevailed in court to the tune of $55 million. Personally, I think it’s a great result and sends a message to companies that you don’t mess around with serious negligence. 

But, as of late, I’m also starting to hear somewhat of a backlash.  I’ve heard people say that it’s a shame that such an award would go to someone who didn't suffer physical injury.  And I’m starting to hear comparisons to the infamous McDonald’s "coffee cup case."  To that, I say, “you’ve got to be kidding me?!” 

Why Andrews’s Jury Was Reasonable.  

Sports Illustrated recently wrote a great article that I think lays out the facts of this case well. You can check out the article here.   

In the case, Andrews won judgment against three defendants. The first was Michael Barrett, the person that actually secretly video taped Andrews through a peephole in an adjoining hotel room. He then released the video on the internet, without her consent (obviously), for millions of people to see. Ultmately, he was criminally charged and plead guilty to interstate stalking of Andrews and was sentenced to 27 months in prison.

The second and third defendants were corporate entities, West End Hotel Partners and Windsor Capitol, which operated the Nashville Marriott at Vanderbilt University. Andrews was able to bring them into the case because an employee of that Marriott negligently confirmed Andrews's reservation to Mr. Barrett. But even more remarkable, they then allowed Barrett to book a room right next door to her.

What’s more, at trial, counsel for West End and Windsor apparently tried to mitigate their losses by asserting that Andrews actually benefitted from the publicity due to the leaked video. You can read more about that here.   

In the face of what jurors found was sincere emotional stress and turmoil suffered by Andrews, at least in my mind, it’s not all that surprising that a jury would punish the corporate defendants for taking such an cringe-worthy approach. Look, I get that there attorneys have to do their job, which often times means making very difficult arguments. I’ve had to make a few of those difficult cases in my career. But in the same sense, a jury has a right to reject that argument and send a message. 

Given the “ick factor” of this bizarre case, the jury was certainly reasonable in awarding Andrews $55 million (when she asked for $75 million). 

Why Andrews's Case Should Not be a Call to Arms for Tort Reform.

Look, I get it, $55 million dollars is a lot of money. People die in tragic car accidents and due to medical malpractice every day who don’t get nearly close to $55 million. So some will ask, “why is this case worth $55 million?!”  

But that’s my exact point. This case is an exception to the rule. Most people don’t get nearly as much money for serious, permanent injuries. So a call for tort reform due to Andrews’s case is truly damaging for the average people who are hurt and seeking fair compensation. 

Take for example, medical malpractice in Virginia. If you’re permanently injured due to a doctor’s negligence, tort reform has caused there to be a cap on damages at $2.2 million (currently). However, if you a driving down the road and negligently injure someone, there’s no cap on damages. Does that make any sense? 

And let's go back to the McDonald’s "coffee cup case." If you google the actual injuries the plaintiff suffered in that case, you’ll see that it wasn’t a simple case about “spilled coffee.” But rather, the plaintiff suffered severe burns in very sensitive areas.  And while there was a above million dollar award in that case, it’s my understanding that the trial court reduced the jury’s verdict, and later on the case was settled confidentially. 

What’s My Point? 

Andrews went through something tragic. The Defense took a very risky and pretty insensitive defense. And the jury hammered them for it. It was a fair result for coporate defendants that likely did a cost valuation on the case to determine “is it worth taking a risk at trial?” without thinking about putting Andrews through the repeated trauma or reliving the whole ordeal in  open court only for it to be argued that she benefitted from it. 

Yes, the award was substantial. But it was reasonable. And it should not be used as a foundation for further “tort reform,” which will affect average people who are substantially injured simply trying to seek compensation to be made whole again. 

If you disagree, I’d love to hear from you. 

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