The Matthew Schwencke Damages Argument That Secured $4.9M Med Mal Verdict

Arguing non-economic damages can be among the most difficult parts of a case. Attorneys must walk a tightrope of providing the jury a framework to measure those damages, without either devaluing the claim or over-arguing the issue and alienating jurors. In closings of a medical malpractice trial involving a patient who lost his leg, Matthew Schwencke’s compelling argument on non-economic damages helped secure a seven-figure jury award. 

Samuel Gray was forced to undergo a below-the-knee amputation after treatment for a blood clot. In closings of trial against against one of his treating physicians, Schwencke, of Searcy Denney, turns to the non-economic damages of the case, or the “human damages” as he calls them, by vividly walking jurors through the amputation’s impact, and tying that impact to specific elements of damages on the jury form.  

Perhaps most vividly, Schwencke takes jurors back to the moments immediately after the amputation, when Gray knew he had lost his leg, but hesitated to look at the amputation. “Once he looked at it, it was real,” Schwencke said. “He sat in that bed and didn’t look at his leg, until finally after awhile to see what had happened.” The detail paints a memorable picture of Gray’s anguish that jurors will likely hold into their deliberations.   

To center the damage claim, Schwencke refers often to the post-amputation medical note detailing Gray’s reaction, his rehabilitation and his pain. That pain, Schwencke says, continues on. “He took the stand and told you that he still feels his left leg today,” Schwencke says, stomping the ground with his own left leg to emphasize the point. “When he was on the stand, he thought he could feel it. And he still experiences pain in that leg today.”

Beyond the pain, Schwencke told jurors, is the emotional toll the amputation takes on his daily life. The additional planning that goes into even moving throughout his house, the fear of crossing a road because of his limited mobility. “What if a car comes?”  Schwencke asks. “He can’t move.”

Schwencke does not ask jurors for a specific amount, minimizing the possibility that jurors may react negatively to what they perceive as too extreme a request. But he nonetheless provides a solid range of what he is seeking, so that jurors do not undervalue the damages:

“I’m not going to give you a number,” Schwencke says. “But [the damages are] catastrophic. They’re in the millions.” 

Jurors awarded Gray $4.9 million, including $4 million for his pain and suffering.