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Megan Sands was seriously injured in a jet ski accident in 2006 while in the Bahamas.
Sands filed a products liability action against Kawasaki, the jet ski manufacturer, under maritime law. The jury returned a verdict in favor of Sands on her design defect claim, and awarded her $3 million, The Nassau Guardian reports. The district court ultimately entered judgment for $1.5 million because the jury found that she was 50 percent responsible for her injuries. Sands appealed, arguing that the jury’s award of $0 for pain and suffering was legally inadequate and against the “manifest weight” of the evidence.
Reviewing the facts of the case, it seems that she has a point. But the Eleventh Circuit Court of Appeals affirmed the district court’s verdict this week. Let’s discuss where Sands’ case went wrong.
The facts around the accident are undisputed. The accident involved a Kawasaki 2003 Ultra 150 Jet Ski that was being operated by Sands' friend in navigable waters off the Bahamas. At the time of the accident, Sands was a 21-year-old college student.
Right before the accident, the friend asked if Sands was "ready" and Sands said "yes." The friend then "then took off" at some unknown high rate of acceleration. Sands was not holding on [at the time], nor was she expecting such a quick takeoff. When Sands fell backwards, the water thrust from the nozzle in the back of the jet ski tore through her vaginal and anal cavities, causing catastrophic injuries. She had to have 19 separate medical procedures and surgeries, and will likely have to wear a colostomy bag and self-catheterize for the rest of her life, absent a medical breakthrough."
If you're in pain from merely reading the court's account of the accident, you may be wondering why the Eleventh Circuit didn't entertain Sands' motion for a new trial on damages only.
The problem is that her argument was foreclosed by the Eleventh Circuit's decision in Coralluzzo v. Education Management Corp.
In Coralluzzo, the Eleventh Circuit reasoned that "all challenges to the inconsistency of special verdicts must be raised before the jury is excused." Like the plaintiff in Coralluzzo, Sands did not object to the jury verdict as inconsistent before the jury was excused.
Sands maintains that the jury, having found that Kawasaki was liable, could not possibly have concluded that she was not entitled to damages for pain and suffering. She also claims that she isn't challenging the verdict as inconsistent, but as against the "manifest weight" of the evidence. The Eleventh Circuit disagreed, finding that her challenge fell solidly in the inconsistency category.
Sands might have been able to prevail with her pain and suffering arguments if she had objected before the jury was dismissed. If your client gets shorted on pain and suffering damages in a similar case, be sure to raise your objections before the jury leaves.