Per Diem Argument: Rivera v. Hall

In Maryland medical malpractice and other personal injury cases, plaintiff lawyers often use a strategy called per diem argument. When addressing the jury in closing argument, the lawyer suggests a number to compensate for pain and suffering and asks the jury to apply it each day for the rest of the plaintiff’s life expectancy. Below, I will discuss the reasons behind this strategy and a recent case addressing it.

Case

The Appellate Court of Maryland recently issued an unreported opinion in Rivera-Ramirez v. Hall (February 12, 2023), addressing a per diem argument. The defendants provided medical services to correctional facilities. The plaintiff was a prisoner in Glen Burnie, Maryland. He injured his wrist in a fight with another inmate. (Op. at 1).

The defendants’ doctor saw the plaintiff. The doctor diagnosed him with a fractured wrist, gave him an ace bandage, and then told him the wrist would self-heal. However, the plaintiff continued to have pain and immobility and filed complaints. Six weeks later, an orthopedic specialist evaluated the plaintiff. The orthopedist then diagnosed the plaintiff with a severe wrist injury that had collapsed and would require a hand surgeon to do extensive surgery. (Id. at 1-2).

Trial

The defendants stipulated liability, and the trial court held a jury trial on damages. The plaintiff filed a motion in limine, asserting that he would be seeking non-economic damages only and seeking to exclude evidence of his medical bills. He argued that the bills were irrelevant to pain and suffering and would be misleading to the jury. The defendants opposed the motion, and the circuit court granted it. (Id. at 2).

At trial, the plaintiff introduced expert testimony that the delay in treatment resulted in a malunion of the bones, causing a permanent injury to his wrist. He also presented expert testimony that his life expectancy was approximately 50 years. (Id.).

In closing argument, the plaintiff’s lawyer requested an award of $100 per day for the plaintiff’s remaining life expectancy. The defendants objected, and the trial allowed the argument. Then the jury awarded $3 million, which the circuit court reduced to $770,000 under the Maryland cap on non-economic damages. CJP 3-2A-09(b)(1). (Id. at 4).

Appellate Court Decision Allowing Per Diem Argument

The Appellate Court noted that per diem arguments have been extensively debated outside Maryland. However, “it is clear that per diem arguments are permissible in this State.” (Id. at 6).

The defendants argued that the plaintiff’s number was improper because it was arbitrary and unrelated to any evidence. Not surprisingly, the Court rejected this argument, finding that the trial court was within its significant leeway in allowing the argument. The circuit court also rejected the defense’s argument that excluding the medical bills denied them the only effective way of opposing the per diem argument. The Court then repeated its prior holdings that there is no relevance between medical bills and pain and suffering. (Id. at 5-6). The Appellate Court upheld the circuit court judgment.

Commentary By the Baltimore Medical Malpractice Lawyer

Theory Behind Per Diem Argument

The idea behind the per diem argument is to give the jury a small dollar number to compensate the plaintiff for the injury for one day. Then the lawyer then shows how long the plaintiff will have to live with the injury. The lawyer usually does this by introducing the plaintiff’s life expectancy. Last, the lawyer puts these two together and arrives at a total damage figure.

Here is an example using the information from the Rivera case, first without the per diem argument and then with:

Without: The plaintiff has a permanent injury that he will have to live with for the rest of his life. His life expectancy is 50 years. You should award him $1,825,000.

With: The plaintiff has a permanent injury that he will have to live with for the rest of his life. Every day, he will be in pain in everything he does. $100 is reasonable compensation for a day of his pain. His life expectancy is 50 more years, that is 18,250 days of pain. As a result, the total award should be 18,250 times 100, which equals $1,825,000.

By focusing on one day, the lawyer can start small and get the jury on board with a fair number for one day. While that number is the lawyer’s opinion, what happens to that number is not. The life expectancy is evidence, not argument, and math ties the two together.

Given the attractiveness of per diem arguments for plaintiff lawyers, it is easy to see why defense lawyers try so hard to exclude them. However, examining the Rivera case shows that the defense has no basis for excluding per diem arguments in Maryland.

Result in Rivera

Part of the plaintiff’s strategy included excluding the medical bills. When medical bills are small, defendants use that number as an anchor to suggest that any pain and suffering award should also be small. However, the Rivera court excluded the bills on the well-established principle that there is no connection between medical bills and the amount of pain.

The plaintiff’s lawyer in Rivera employed the per diem strategy to obtain an excellent result of $770,000. That sum is the maximum the plaintiff could get under Maryland’s cap on non-economic damages. The jury’s verdict was $3,000,000. Apparently, the jury awarded significantly more than the plaintiff’s lawyer’s per diem argument requested. (By my calculation, the per diem argument totaled about $1.825 million)

Conversely, the defense of this case could not have gotten a worse result. To make the defense result even worse, the defendants paid their lawyers to pursue an appeal with little chance of success. The defense did not provide one Maryland case that supported excluding a per diem argument. Its availability in Maryland is well established. Predictably, they lost the appeal.

The defense’s result was likely made even worse by having to pay post-judgment interest to the plaintiff for the time it took the Appellate Court to decide the appeal. Maryland’s rule provides for post-judgment interest of 10%. Based on the trial court docket, the total post-judgment interest alone paid could have exceeded $120,000.

Conclusion: Per Diem Arguments Are Clearly Allowed

Per diem arguments are well established in Maryland. They are effective for plaintiffs, and the courts recognize that there is nothing unfair about them.

The defense opposing a per diem argument has options. They can request a cautionary instruction from the court that the per diem presentation is an argument, not evidence. They can also direct that observation to the jury without the court’s assistance. Additionally, the defense can argue to the jury that the plaintiff’s damage request is excessive by focusing on the total and not the per diem components.

Mark Kopec is a top-rated medical malpractice lawyer. The Kopec Law Firm is located in Baltimore and helps clients throughout Maryland and Washington, D.C. You can contact us at 800-604-0704 for a free consultation. Thank you for reading the Maryland Medical Malpractice Lawyer Blog.