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  • The News-Gazette

    Attorneys argue whether record-breaking $535 million verdict in Pavilion rape case is too high

    By SAMUEL LISEC slisec@news-gazette.com,

    22 days ago

    URBANA — Reading from a legal periodical in the Champaign County Courthouse on Thursday, Judge Jason Bohm cited an article on “nuclear verdicts” that stated the highest amount of damages ever awarded out of a civil trial in Illinois was $363 million in 2022.

    If that was the case, Bohm asked an attorney representing the mother of a girl who was awarded $535 million by a jury earlier this year after successfully suing a local psychiatric facility for negligence, why should he not side with the defendant’s argument that the verdict was excessive?

    The debate came as part of ongoing post-trial motions filed by attorneys representing the Pavilion Behavioral Health System who moved to reduce the damages awarded by a Champaign County jury March 29 and request a new trial.

    Jurors deliberated for about six-and-a-half hours at the end of the seven-day trial before siding with the plaintiff, whose daughter was raped at age 13 in 2020 while a patient at the Pavilion’s Champaign facility. The rape was perpetrated by another patient who has since died.

    Tim Cronin, an attorney representing the plaintiff, recommended during the trial’s closing arguments that the jury require that The Pavilion pay $575 million in total damages — $75 million in compensatory damages to the victim and $500 million for punitive deterrence.

    An attorney for The Pavilion argued that the facility was not negligent in regard to the girls’ rape, but if it were found liable, then $1 million in total damages would be appropriate.

    The jury arrived at $60 million in compensatory damages — $20 million for the girl’s “loss of normal life” and $40 million for her “pain and suffering.” It then determined that $475 million was appropriate in punitive damages, ultimately bringing the total sum to $535 million.

    Greg Ostfeld, an attorney representing the Pavilion on Thursday, posed three questions to Bohm and argued that if the judge’s answer to any is “yes,” then he must side with the Pavilion’s motion to amend what will otherwise be a state-record-shattering verdict.

    The first question was whether the jury landed outside the bounds of “what’s fair and reasonable.”

    Ostfeld acknowledged that the girl suffered “very serious and traumatic harm,” but argued that she did not incur “serious physical harm,” as she was not physically disfigured or disabled.

    Further, a psychiatrist evaluated the girl and found that she has shown signs of “significant improvement” in her mental symptoms, Ostfeld said, and neither side has disputed that she is capable of achieving her life’s goals and “getting over” what happened at the Pavilion.

    Bohm noted that the permanence of a psychiatric injury is likely dependent on treatment, but the fact that she suffered the trauma while in a psychiatric facility designed for her treatment may exacerbate the lasting effect of her assault.

    Ostfeld’s second test was whether the verdict simply “shocked the judicial conscience,” and his third was whether the jury could have been motivated by “passion or prejudice” instead of the evidence presented at trial.

    Ostfeld highlighted that the plaintiff’s attorney, in his closing arguments, invited jurors to consider the value society puts on protecting children and the need to deter other facilities in the industry from operating negligently and acting as sites of attacks on other victims.

    Bohm noted that attorneys representing the Pavilion did not object during when Cronin made those statements and asked whether there is any evidence to suggest that the Pavilion has accepted responsibility for its conduct, such as through changing its policies.

    Ostfeld emphasized that no Pavilion employees intended for the girl to be harmed and that it has continued to implement its “therapeutic model,” which is not inherently wrong. He said the jury cannot be tasked with determining how the industry operates in the state.

    During his turn, Cronin argued that it was the Pavilion’s intentional decision to allow an environment in which a patient could be raped and pointed to how the plaintiff’s daughter is still suffering as she broke down and ran off the stand while testifying at one point during the trial.

    Cronin further argued that no consideration can be given to the financial state of the Pavilion’s parent company as the defendant had the choice to present evidence to that effect during trial but declined.

    Cronin also said he implored the jury twice in closing arguments to only base their decision on the facts, so to side with the defense’s argument would mean ruling that the jury must have ignored his requests and the formal jury instructions.

    Bohm reflected that the punitive model of calculating damages is inherently incapable of determining an objective number, and while he must give great difference to the jury’s verdict, he doesn’t have to give unlimited deference.

    “There is not a formula for this, and we have the jury system for a reason, and it includes for punitive-damages claims,” Cronin said, emphasizing that the jury took “great consideration” to the trial’s extensive display of evidence and 19 different witnesses.

    “Obviously, they found the conduct extremely reprehensible, and I don’t know, Judge — there’s nothing objective for you to look to to overrule the jury’s decision. There just isn’t.”

    Bohm did not rule on the post-trial motions yet; another hearing for further oral arguments is set for later this month.

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