In today’s St. Louis Post Dispatch, there is a column by Pat Gauen. Mr. Gauen attempts to explain the disparity in settlements and verdicts in a variety of complex and intricate cases. He attempts to cover these cases in a few hundred words.
To make matters worse, he is misinformed on the law of punitive damages and on what an actual plaintiff can recover. He fails to mention that a plaintiff who is awarded punitive or exemplary damages routinely only sees about 10-20% of that award. Why? Mr. Gauen fails to mention that the State receives 50 percent of the award and the rest is subject to taxes, fees and costs. Additionally, the law in Missouri does NOT allow for unlimited punitive damages. No matter how outrageous a person’s conduct is, the most that can be awarded is either $500,000 or fives times the amount of the actual damages. I venture to bet Mr. Gauen has never even seen a punitive damage instruction. It is a shame he has a forum to reach hundreds of thousands and does not even do the slightest bit of research. It is also irresponsible.
Was Mr. Gauen present for any of the proceedings in any of those cases? Did he invest hundreds of hours working on the issues? Did he attend depositions and read the pleadings? Examine discovery? My guess is “no” to all of those but I could be wrong. He then insults the attorneys who recommended settlement out of court. I wonder if he is familiar with the quote by Teddy Roosevelt about the Man in the Arena.
For Mr. Gauen to state that insurance companies routinely choose to settle out of court completely incorrect—a statement he does not factually back up or provide any quotes from anyone in the business of litigation. Clearly, Mr. Gauen has never litigated against an insurance company. It is also clear that he has never worked as insurance defense attorney. He would know that it is the plaintiff who almost always makes the choice to settle. In most cases that is because the insurance companies can drag the cases on for over a year or more without any payment. They can hire big firms to handle the cases and hire pricey experts to malign the plaintiff. Most plaintiffs are not willing to wait that long or go through the stress of pre-trial litigation. They usually accept settlement for less than true value.