Photo by dctim1 on Flickr.

In August 2010, a Metrobus sideswiped a van with a disabled woman inside.  Last week a jury heard the woman’s lawsuit against WMATA, and awarded the woman a small sum — $8,500.  I was one of the 8 jurors. 

The woman’s attorney, clearly disappointed, asked for every juror to stand up one by one and affirm their agreement with the award amount.  However, it was contempt for the woman’s attorney, and the physician the attorney had sent her to, that led to most of the debate in the jury room.

The jury deliberations were tense at times, as jurors hearing the same testimony drew very different conclusions.  A picture of what Washington is becoming formed amidst jurors’ arguments, and I wondered if a jury 30 years ago might have decided the case differently.

Before the trial, I told the judge that I had written several articles on Metro, some critical, for a local blog.  I suspected that WMATA’s attorney would strike me from the jury as a result. However, after describing the topics of each article to WMATA’s attorney, both attorneys declined to strike me from the jury.

After trials are completed, jurors are permitted to discuss or not discuss the trial as they choose. 

What happened?

We heard the testimony of the plaintiff, Cynthia Lee, a 57-year old African American woman who lives in southeast DC.  Ms. Lee has lived on disability income for 23 years since a 1990 car accident left her in constant pain.  She has had several neck surgeries, and is seen regularly by orthopedic surgeons and pain specialists at GWU.

She lives with her fiancée of 7 years, Calvin Thomas, and his 7-year old granddaughter.  A home health care aide helps her on weekdays.  One juror said that “she receives better medical care than our troops coming back from Iraq.”

The morning of the crash, she took MetroAccess from her home to GWU where her doctor discussed her continued pain and suggested she resume physical therapy.  Afterwards, her fiancee picked her up from GWU in their van and they drove towards Northeast DC to pick up his granddaughter from his sister’s house. 

As they crossed North Capitol Street on K Street, a D8 bus headed westbound on K Street turned left onto North Capitol.  Mr. Thomas slowed his van in the intersection as cars in front of him slowed down, but the Metrobus kept turning and sideswiped the van.

The physical damages to the Metrobus and the van were slight — a little paint scraped off and a small dent.  It was hard to imagine that the force of the impact could have even injured passengers.  The police were called, but no police report was filed.

Ms. Lee visited the emergency room at Washington Hospital Center the next day, complaining of pain following the accident, and received a CT scan.  Five days after the accident, she returned to her orthopedic surgeon at GWU who assured her the rods and screws in her neck from previous surgeries were still in place.

An ambulance-chasing attorney, or a woman asserting her rights?

At some point during the week after the accident, Ms. Lee came into contact with a personal injury attorney.  The attorney referred Ms. Lee to a different orthopedist in Ft. Washington, MD.

The orthopedist in Ft. Washington had an initial consultation with Ms. Lee, which cost $400. He then ordered $1,600 worth of X-rays that Washington Hospital Center had not ordered.  He prescribed physical therapy of heating pads, cold packs, and electric stimulation, to be administered in his office.

3 weeks after the accident, the Ft. Washington orthopedist ordered a $2,000 MRI that showed no injury.  A month and 7 physical therapy appointments later, Ms. Lee reported that her pain had not subsided, and the physical therapy ended.

Nonetheless, the Ft. Washington orthopedist brought her in for 6 additional follow-up visits from October 2010 through January 2011, none of which resulted in new diagnoses or prescriptions.  By that point, Ms. Lee said her pain had subsided to pre-accident levels.  The total bill?  $10,200.

Judge Maurice Ross gave us clear instructions.  If we found WMATA negligent in the accident, and found the accident to be the proximate cause of Ms. Lee’s damages and injuries, then we must quantify reasonable medical costs, inconvenience to Ms. Lee, and any pain and suffering Ms Lee. endured.

Was WMATA negligent? 

After all of the closing arguments, the jury began their deliberations with a vote on the first question.  Did WMATA negligence cause the collision?  5 jurors voted yes, while 3 voted no.

I voted yes, and was surprised at the vote.  Wasn’t it obvious that WMATA caused the accident?  Hadn’t WMATA’s attorney even said that he would defer to the jury’s decision on negligence, that his objection was to the amount of any damages?

The 3 dissenting jurors said this was a “no-fault” accident.  There was hardly any property damage at all.  The parties should have just walked away. 

We objected that “no-fault” accidents aren’t actually no-fault, the parties just declare them to be “no-fault” to keep their insurance premiums from rising.  The dissenting jurors ultiamtely agreed, and the jury assigned negligence to WMATA with an 8-0 vote.

Did the accident cause damages to Ms. Lee? 

The jury then voted on whether the accident was the “proximate cause” of any injuries or damages, a vote that went down 1-7.  I was the 1. 

Many of the 7 jurors voting yes argued that the nudge to the van wouldn’t have injured passengers, but I argued that Ms. Lee was not just any passenger.  She was more susceptible to injury than most passengers.  In the words of Metro’s own orthopedic surgeon expert witness, she was “a compromised host.”

The 7 jurors argued Ms. Lee was clearly being used by her attorney and the attorney’s physician, and that no award money would ever make it to Ms. Lee anyway. 

I countered that no evidence had been provided contradicting Ms. Lee’s claim to be in more intense pain following the accident.  WMATA didn’t challenge her claim to be in greater pain following the accident.  So what basis does the jury have for saying she is lying?

All 8 jurors then agreed, some reluctantly, that they must conclude that Ms. Lee suffered injuries caused by WMATA. But they were hesitant to award more than a small award, convinced that all the money would go to Ms. Lee’s attorney and the Ft. Washington physician to whom she had been referred.

Jury debates the award as a picture of Washington emerges

We read through the Ft Washington physician’s $10,200 invoice line-by-line.  Some jurors were comfortable ordering Metro to pay for all of his costs except for the last 6 visits to his office.  That added up to about $8,500.  Others were opposed to any such sum.

One juror in opposition argued that it was a minor incident, and it was completely unfair for taxpayers to have to pay $8,500 for a scrape of some car paint. 

I argued to the jurors in opposition that that’s precisely why motor vehicle transportation is so dangerous — it’s unforgiving to the slightest infraction.  You can glance at your phone while driving and cause multiple fatalities.

Another juror who opposed any award in the several thousands of dollars argued that we should consider what society owes Ms. Lee, and that in his judgment society owes her little.  You can’t quantify pain, and anyway she has been in pain for years for which society was already doing a lot.

I challenged the jurors in opposition to remember the question that we had all been asked by Ms. Lee’s attorney before the trial: could we set our personal views on tort reform aside and decide on a verdict based on the judge’s instructions?  We had all answered yes to this question.

Our job was to assign objective values to these things, not to decide what society owed Ms. Lee or to send a statement to the judicial system with a small award. 

Another juror said in frustration that he had always paid for his medical costs through college to this day, and taxpayers shouldn’t have to pay Ms. Lee’s medical costs.

Ultimately, the only figure we could agree on was $8,500 for her medical costs.  I could have supported a larger award, as it made little sense to me to find medical costs reasonable but assign no value to the pain for which those medical costs were incurred.

Others were clearly unwilling to award a penny more, and I agreed that quantifying pain and suffering would be difficult.  Ms. Lee’s attorney had asked her no questions about her suffering and the consequences of the pain for her life, so we had little actual evidence on which to base an award for suffering or inconvenience.

Did the jurors’ backgrounds inform their views?

The jury consisted of 5 white men, 2 black women and 1 white woman.  The 2 black jurors spoke very little. 95% of the deliberations happened among the 6 white jurors.

It was clear that some jurors viewed Ms. Lee through a lens stereotyping much of Washington, an African-American in Southeast DC pulling every string in the system for her personal benefit while contributing little.

During the trial, though, a very different picture appeared to me.  Ms. Lee dropped out of school in 11th grade, and still managed to become trained as a Certified Nursing Assistant and Home Health Aide.  She worked in both professions until the age of 34, when the catastrophic crash in 1990 resulted in screws and rods in her neck.

She lived a quiet life for the next 20 years, in near-constant pain.  She is on daily narcotics to this day to manage her pain, which she places at a 9 on a scale of 1-10.  If not for her personal injury attorney, I’m confident that Ms. Lee would have filed no case against WMATA. 

When you imagine walking in the shoes of someone like Ms. Lee, you realize that one man’s ambulance chaser is another man’s right to counsel.  One man’s medical expert for hire is another man’s right to get a second opinion.

A jury, randomly selected from DC residents, and its deliberations provide a snapshot of how our city is changing, and how we solve bigger problems.

Sometimes I fear that the Washington that we are becoming has little interest to walk in the shoes of others, or even imagine what it would be like to do so.  As DC grows, I hear too many who see our growth as a rejection of our past and of the people who built DC in the decades since Home Rule.  We don’t see ourselves as one city.

It was hard, on this jury, not to imagine how the jury deliberations would have been different 10 years ago, 20 years ago, 30 years ago. Can we grow and evolve as a city, and still see other residents as “in this together” with us?

Ken Archer is CTO of a software firm in Tysons Corner. He commutes to Tysons by bus from his home in Georgetown, where he lives with his wife and son.  Ken completed a Masters degree in Philosophy from The Catholic University of America.