The $0 Whiplash and Mild Concussion “Verdict of Silence”

How does a $1,000,000 verdict in a car-accident-whiplash case become a $250,000 verdict and then ultimately become a $0 judgment? That is the query recently answered by the Seventh Circuit in Spinnenweber v. Laducer.

Spinnenweber was driving a minivan on I-94 in Indiana when he was rear-ended by a truck driven by Laducer. Spinnenweber refused medical care at the scene and only five days later sought care at an urgent care center for pain in his neck and possible ringing in the ears, which is also commonly known as tinnitus. Three months later Spinnenweber reported to his doctor that he was suffering tinnitus and short-term memory loss. Spinnenweber ultimately treated with seventeen medical providers.

Spinnenweber sued Laducer and Laducer’s employer. At trial, Spinnenweber did not seek damages for anything but physical injuries, waiving any request for medical expenses or lost wages or psychiatric, mental, or emotional injuries. The Defendants conceded responsibility for causing the crash.

None of Spinnenweber’s seventeen providers testified at trial. Instead, Spinnenweber and his friends and family testified and he called the Defendant’s medical expert, Dr. Peter Carney, by his recorded deposition testimony.

As for Spinnenweber’s injuries, Dr. Carney testified he had suffered whiplash but did not relate the tinnitus to the crash. Further, while Dr. Carney noted it was “possible” Spinnenweber had suffered a mild concussion, he testified he was certain it was not serious and that any objective testing suggesting a brain injury could not be tied to any particular injury or occurrence.

In his closing arguments, Spinnenweber’s counsel argued that “[t]he purpose of tort law, or negligence law, is to deter bad conduct so it doesn’t repeat.” The jury entered a verdict in Spinnenweber’s favor in the amount of $1,000,000.

The Defendants requested the court reduce the verdict (remittitur) or grant them a new trial, arguing the verdict was unsupported by the evidence and grossly excessive. The trial court granted the motion and gave Spinnenweber the option of accepting a judgment reducing the verdict to $250,000 or a new trial. Spinnenweber, through his counsel, declined to accept the reduced verdict. Then Spinnenweber’s counsel advised the court he would be withdrawing and Spinnenweber would be proceeding pro se.

The court set the matter for a jury trial, but the parties waived the jury trial demand. At the one-day bench trial, Spinnenweber “presented no evidence and requested an award of $0 in damages, which he described as a ‘verdict of silence.’” The Defendants moved for judgment in their favor, which the Court granted. Spinnenweber, represented by counsel, appealed the district court’s award granting Defendants’ motion for remittitur or a new trial.

First, in reviewing the trial court’s granting of the Defendants’ motion, the Seventh Circuit found that there was no evidence to “show that the crash could have caused Spinnenweber’s other alleged injuries such as internal brain trauma and tinnitus. Those were subjective injuries because Spinnenweber perceived them, but they were not directly observable by his doctors.” Because the cause of unobservable injuries presented a “complicated medical question,” it would have been conjecture or speculation for the jury to conclude Spinnenweber suffered those injuries on account of the car crash. Consequently, the Seventh Circuit found that the trial court was correct to conclude the only two injuries at issue had been “whiplash and a mild concussion.”

Second, the Court addressed the issue of whether there was sufficient evidence to support a verdict for $1,000,000 in damages. The Seventh Circuit noted that although juries are given “wide latitude” to award damages, this does not equate to “unlimited discretion.” Noting that Spinnenweber had not sought any medical expenses, lost wages, or damages for emotional harm, the Seventh Circuit concluded that the jury must have nonetheless awarded damages for all of Spinnenweber’s injuries, rather than his whiplash and a mild concussion. It suggested that this may have been tied to his counsel’s argument that the purpose of tort law was to deter bad conduct, so it does not repeat. Consequently, the Court found the trial court’s offer to Spinnenweber of the choice of a reduced verdict or a new trial was not an abuse of discretion.

Even then, the Court noted, Spinnenweber did not have to seek $0 in his second trial. But, by doing so, he “was hoisted with his own petard” by seeking a $0 “verdict of silence.” The Court’s opinion can be read here.