After dog bites postman, $375k jury award fits between floor and ceiling of high-low settlement agreement

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In a dog-bites-postman case in Massachusetts, the Appeals Court in late October held that the parties' "high-low" settlement agreement was a "contract like any other" and did not bar the defendants' appeal.

The plaintiff-postman in the case was covering an unfamiliar route when he was bit in the wrist and thigh by German shepherd-golden retriever mix "Chewbacca." At trial, the jury awarded the plaintiff $375,000 in damages. The defendants asked for a new trial, arguing that the jury was tainted by improper admission of information about the plaintiff's federal worker compensation benefits, in violation of the collateral source rule.

Before the jury verdict, on the last day of trial, the parties had struck a handwritten "high-low" settlement agreement.  They set a floor recovery of $150,000, if the jury verdict were anything less, and a ceiling of $1,000,000, if the jury verdict were anything more.

The plaintiff argued that the settlement agreement precluded appeal.  But it didn't say that.  Holding that the settlement agreement was to be construed as a "contract like any other," the Appeals Court found no language convincingly demonstrating defendants' waiver of appeals.  At the same time, the court held that the evidentiary admission in violation of the collateral source rule was harmless error, affirming the denial of new trial.

Regarding the high-low agreement, the court found "little law in Massachusetts."  More than 20 years ago, two New York attorneys described the agreements as "[a]n often underutilized and misunderstood litigation technique." At NYU in 2014, a research fellow examined the agreements' potential and limits in New York, Maryland, and Virginia; see also the ABA Journal in 2005.  An Illinois attorney wrote favorably about the "misunderstood" agreements in 2019, after a medmal plaintiff-baby's verdict was halved by a high-low from $101 million.  Virginia attorneys advised on drafting the agreements in 2007.

In a harder scholarly vein, research published in The Journal of Law & Economics in 2014 reported empirical research on high-low conditions and posited optimal conditions for their appearance.  Published soon thereafter, a Michigan law student argued that high-low agreements should be disclosed to juries.

The Massachusetts case is David v. Kelly, No. 20-P-706 (Mass. App. Ct. Oct. 25, 2021). Justice Mary Thomas Sullivan wrote the opinion of the court, which Justice Kenneth V. Desmond Jr. joined.  Justice Sabita Singh dissented as to the court's conclusion that the error on the collateral source rule was harmless rather than prejudicial.