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Erin Andrews – a cautionary tale of civil lawsuits and why a $55,000,000.00 judgment may have been a curse instead of a blessing

This Blog post has nothing to do with the usual subject matter of this Blog, NY speeding & traffic ticket defense. In fact, it doesn’t even have anything to do with criminal law or anything remotely tangential to traffic law. Rather, it comes to us from the other side of the legal room – civil tort litigation.

By now everyone knows who Erin Andrews is – she’s a very young and sexy sports reporter. In 2009 she was victimized by a total low life degenerate, David Barrett, who without her consent or knowledge, surreptitiously video taped her while nude in a Nashville hotel room after he altered the peep hole of the door, and then posted the video online. Barrett was prosecuted and is currently in jail for this despicable act. Subsequently Ms. Andrews brought a civil lawsuit against not just Barrett but the hotel companies, West End Hotel Partners and Windsor Capital. These two companies operate the Nashville Marriott at Vanderbilt University.

The legal theory against the hotel sounded in negligence; i.e., that the hotel had a duty to Ms. Andrews, that they breached the duty, and that the breach of duty was the proximate cause of her injuries, which were mainly psychological (emotional distress) and loss of reputation.

The facts which supported Ms. Andrews claim of negligence was that the hotel was at fault for giving Barrett Ms. Andrews hotel room number and then allowing him to rent a room right next to hers. Ms. Andrews had a solid legal case against Barrett, as under an area of law known as hotel premises liability, hotels and inns are expected to make reasonable efforts in guaranteeing the privacy and safety of guests. In disclosing her name and room number to a 3rd person the hotel failed to do so.

The problem Ms. Andrews now has is not that she was awarded a judgment, but the amount of the judgment. Money judgments are supposed to compensate an injured party for loss. This damage award is totally outside of the norm of a situation where a victim suffered no physical injuries or loss of income. Indeed, Ms. Andrews has continued to thrive in her broadcasting career. In 2012 ESPN and Fox Sports even got into a bidding war for her services. In other words, whatever her injuries were they have not been so detrimental so as to interfere with her upward career trajectory.

To put Ms. Andrews award in perspective, consider this: In 1995 fifty two year old Willie King was admitted to University Community Hospital in Tampa, Florida to have his leg amputated. The wrong leg was amputated, and by the time the surgeons realized their mistake, it was too late to reattach the leg.  Mr. King recovered only $1,150,000.00 for what amounted to loss of both legs.

Despite the jury verdict companies don’t just whip out their check books and pay the debt. That this jury spoke is only the start of the next phase of the litigation.  The hotel defendants have the right to bring post trial motions to set aside or reduce the verdict, as well as appeal the decision holding them liable as well as the judgment amount. When a verdict is this large and on its face excessive defendants always continue the fight.

Don’t get me wrong, I am not saying that Ms. Andrews did not suffer or that the hotel was not liable. They were. And while this case is not worth $55,000,000.00 in damages, it was insane for the hotel to take it to trial. This is what dopey lawyers who have never been in a street fight and MBA’s who think they know everything just never get. I totally agree from a legal standpoint the hotel had 2 great defenses: (1) that they were not negligent, and (2) even if they were whatever Ms. Andrews suffered, if anything, is non-compensable because her career took off after and because of the incident and she did not suffer so much psychologically that she is unable to function. In fact, they even argued that Ms. Andrews career and income benefited from this publicity.

However, without getting into the weeds of the correctness of the legalese behind these valid legal defense theories, this matter should have been settled by the hotel for one basic, visceral reason – this case has a huge horror quotient to it. I mean, can you imagine being at a top rated hotel, in your room, minding your own business, and to have this happen to you – or your wife – or your daughter. We have all traveled and stayed in hotels. There is not a human being on the planet couldn’t relate to this. This kind of case has an explosive broad based empathy factor.

Whenever you are a deep pocket you have to act to protect your assets, even if that means putting more money on a case than you believe the matter to be worth. However, in this case the hotel did not even put a dime on the case. They took what we in the legal business calls a “no pay” position. This was insane, because if you couldn’t see this verdict coming around the bend you would have to be blind. I only wish I could climb into the brains of the morons who thought they were actually going to get this case dismissed to see first hand the obviously diseased critical thinking and decision making section of their grey matter. Of course the judgment was going to rule against the hotel. As a lawyer, you have to be mentally ill to truly believe that a jury looks at the law antiseptically and cannot be swayed by emotion. Of course they can. That is the whole point of having a jury system to begin with. The entire judicial system is based on having your community, neighbors, and peers pass judgment on you, not some Wizard of Oz type judge.

This case illustrates the problem with excessive verdicts. As an attorney that used to do a lot of accident cases, I could not stand them because it made the job of actually getting a check cut from an insurance company so much harder. So while the jury was showing their disgust in their verdict amount, which we all can agree with and derive some quantum of satisfaction, this does not help Erin Andrews. If the verdict were say $10,000,000.00, even though still excessive it would be a lot harder to justify continuing the fight, as again with the horror factor judges would be loathe to lower it. Maybe the hotel could rattle the cage a little bit, file a notice of appeal, and move the court to set it aside, all the while negotiate with Ms. Andrews for a 20% discount to settle and pay. However, at $55,000,000.00 the judgment is on its face excessive by law and a judge, somewhere along the line, is going to be hard pressed to NOT reduce it substantially. So the hotel has no choice but to continue the fight.

The best thing that could happen in this case for Ms. Andrews is that she reaches a settlement with the hotel. The smartest thing for the hotel to do is agree to a settlement well above what it should be yet substantially lower than the $55 million awarded. From the hotel’s perspective, they have to consider the cost of the litigation already spent, the cost of the litigation going forward, and the risk involved in that you never know, the verdict may not be set aside, or may only be adjusted downward slightly. While this battle is taking place post judgment interest is accruing at the rate of 9% annually. On $55,000,000.00, you do the math.