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Edwards's career tied to jury award debate

RALEIGH, N.C. -- Senator John Edwards, the North Carolina lawyer running for president, built a career out of winning historic jury awards for children who suffered birth defects allegedly because doctors mishandled their deliveries -- from a record $6.5 million in 1985 to a new record of $23 million in his last trial in 1997.

His summations became legendary, with lawyers crowding the courtroom to listen to Edwards move jurors to tears. "What value do you attach to the emotional suffering that this little girl will have for the rest of her life?" he asked in his breakthrough case, in 1985. "I wouldn't take $10 million for it." Edwards also persuaded the jury that the hospital was responsible, even though the doctor was not an employee.

But in a precursor of battles to come, the trial judge set aside a portion of the $6.5 million verdict as excessive, and an appeals court agreed. The North Carolina Hospital Association filed an unsuccessful protest brief, claiming Edwards had opened a new avenue for malpractice cases.

Now, spurred by President Bush, Republicans are seeking to limit awards for pain and suffering, saying juries are driving up the cost of health care. On Saturday, Texas voters narrowly supported a $750,000 cap on pain and suffering awards. Today, North Carolina is scheduled to consider limiting such awards to $250,000. While Edwards helped block a similar bill in the Senate last July, Republicans are vowing to take it up again, putting Edwards -- and his career -- back in the spotlight.

"To the extent that he's been able to persuade a jury, he's succeeded," said state Senator Robert Pittenger of North Carolina, referring to Edwards's ability to make a jury cater to his client's needs. But Pittenger, a Republican supporting limits on jury awards, insists, "That's not, to me, an equitable way to try to stabilize the health care industry."

A Globe review of Edwards's career from the mid-1980s through 1997 reveals that he was more than just a practitioner of medical malpractice law. He was one of its most prominent specialists, stretching the reach of the law for nearly two decades. But he also came to personify some of the alleged excesses that reformers have sought to curb.

For instance, his summations routinely went beyond a recitation of his case to a heart-wrenching plea to jurors to listen to the unspoken voices of injured children.

"I have to tell you right now -- I didn't plan to talk about this -- right now I feel her, I feel her presence," he said in his record-setting 1985 lawsuit on behalf of Jennifer Campbell, born brain-damaged after being deprived of oxygen during labor. "She's inside me and she's talking to you. . . . And this is what she says to you. She says, `I don't ask for your pity. What I ask for is your strength. And I don't ask for your sympathy, but I do ask for your courage.' "

Critics say such emotional appeals can lead to pain-and-suffering awards that go beyond what's warranted. "There's a feeling that jury verdicts are not based on just the facts," said Nick Ellis, president-elect of the North Carolina Association of Defense Attorneys.

Edwards, who declined to comment for this report, has said he opposes limiting awards for pain and suffering because they "will affect a situation where a child is blinded for life, where a child is paralyzed for life," and compensating them for medical costs or lost income wouldn't account for their hardships.

In some of his cases, the awards for pain and suffering exceeded his clients' economic losses.

For instance, in a 1994 case, one of Edwards's clients had a double mastectomy based on the doctor's mistaken belief that she had suffered a recurrence of breast cancer. An arbitrator awarded her $850,000 for emotional distress. Without a pain and suffering award, her damages would have been limited to medical expenses.

In other cases, Edwards argued that decades of medical care should justify enormous damages.

Edwards's largest malpractice verdict involved a child who was brain-damaged at birth. At trial, Edwards presented expert testimony that the child might live for more than 40 years and incur lifetime medical expenses of tens of millions of dollars. Defense witnesses testified that the child might die within a few years.

The jury awarded $23 million in 1997. Afterward, both sides settled for an undisclosed amount. As it turned out, the child died at age 6 from her injuries.

Her death spurred critics to propose another change in the law: allowing defendants to pay in installments rather than a lump sum. "I don't know what the downside is," said Ellis.

But making payments in installments could cause a significant drop in fees to plaintiffs' lawyers. Most personal-injury lawyers get a percentage of what their clients receive. Edwards's firm typically received between 25 and 40 percent of the verdict, according to his former partner, David Kirby.

Plaintiffs' lawyers say they depend on contingency fees because many clients can't afford the high cost of hiring specialists and taking depositions; under a contingency fee, the lawyer pays those costs upfront. Contingency fees "provide access to the court system that would not be available to a huge segment of society," said Kirby.

Critics counter that jury verdicts are supposed to compensate plaintiffs, not their attorneys. Edwards, according to financial disclosure forms, is worth between $12.8 million and $60 million.

Beyond obtaining large awards, Edwards expanded the limits of personal-injury law. The Campbell case, for instance, involved an expansion of liability for hospitals, even when the treatment was by a private physician.

Six years later, in 1991, Edwards won a $2.275 million verdict for the family of a woman who killed herself in a hospital a few days after she was taken off a suicide watch. The case appeared to be the first time in North Carolina that a hospital was found liable for a patient's suicide, according to North Carolina Lawyers Weekly.

In 1994, Edwards won a lawsuit against a doctor who failed to diagnose prostate cancer, even though his client allegedly missed several follow-up appointments.

But the case remembered as his biggest win came in 1997 and involved a 5-year-old girl who was injured by a swimming-pool drain. The drain cover was off and the girl was trapped by a suction pump with enough force to extract her intestines. The manufacturer argued that if the cover had been installed correctly, the accident would not have happened.

Edwards countered the company should have provided better warning labels. "Some of the covers say nothing," he said during his summation. "If that continues, it's not a question of whether there's going to be another child hurt. It's just a question of when."

Later, he pulled a newspaper out of his jacket and started to read.

"There was a wonderful, wonderful thing written this past spring. . . . It involved the death of a young boy who shouldn't have died, and what he wrote was this: `We have to gather around this family not because we understand what they're going through, but because -- but because they have to know we share their pain. Our feelings -- our terrible, terrible feelings prove that we really all are part of the same family. Their loss was our loss. Their child was our child.' "

What Edwards did not tell the jury, although some lawyers in the audience knew, was that the piece referred to his own son, Wade, who had been killed in a 1996 car accident at age 16.

When the jury came back with the $23 million verdict, 10 of the 12 jurors were crying, recalled the judge who presided at the trial.

To those who had worked with Edwards for years, the result was familiar. So was the familiar air of empathy.

Said Wade Byrd, a fellow plaintiff's attorney, "John then and now had almost a Clintonesque ability to understand a complex subject and break it down to very simple terms."

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