Trial and True: Empowering the Jury with Medical Malpractice Trial Lawyer Ron Mercaldo

Ron Mercaldo was on his way to court on a particularly big trial day, listening to the radio in his car. Broadcasters discussing a young athlete's $5M annual salary sparked an idea in him. When Mercaldo got in front of the jury that day, he recounted what he’d heard on the radio before asking them to weigh in on a big decision – what is a life worth?

The jury's task seemed impossible – landing on a number to value the loss of a young life to her grieving parents. Mercaldo could feel the weight of this responsibility wash over the jury, but experience had taught him to trust they would do the right thing. He wasn’t telling them what to do and he wasn’t suggesting that this young lady would have commanded a pro-sports salary, but Mercaldo framed the question in a way that empowered the jury to think for themselves about how we value human life.

Mercaldo’s tactics were effective that day: The jury came back with a $5M verdict – higher than anyone expected. It was a major win for Mercaldo, and it was not the first time he’d taken this approach.

Having tried over 200 cases to verdict, Mercaldo brings with him invaluable in-court experience that can be hard to come by these days. Between mediations, arbitrations and settlements, actually making it to court is increasingly rare. And in the hundreds of cases he’s tried, Mercaldo’s become prescient when it comes to talking to a jury.

“Asking for monetary damages for a plaintiff is very difficult,” says Mercaldo. “Asking for too little, you run the risk of putting a cap on the award. If you ask for too much, you could potentially offend some jurors. So, rather than asking for a specific amount of money, I started providing the jury with an alternative path to reach a fair and just verdict.”

Mercaldo has been refining his practice for decades. He opened Mercaldo Law Firm in 1978, with the sole intention of representing plaintiffs and their families in serious injury and wrongful death cases. The firm has shifted focus in the last 20 years and is now squarely set on the complex and challenging medical malpractice space.

Mercaldo is passionate about getting the best results and the biggest settlements, but he is careful not to let the thrill of the prize cloud his judgement or get in the way of what really matters – his clients. He will always consider his clients’ wishes above anything else. After all, it’s their lives, their families and their futures at stake.

Mercaldo is a member of The Lawdragon Hall of Fame.

Lawdragon: How did you get your start in law?

Ron Mercaldo: In undergraduate, I double majored in economics and accounting and because tax law was incredibly easy for me, I was going to be a tax lawyer. As graduation from law school approached, I saw a job posting from a famous Arizona trial lawyer who had done very important cases that we had actually studied in law school. He had accomplished some significant things in his career. For example, he’d gotten governmental immunity abolished. I really wanted to meet him, so I set up an interview with him.

It was an interesting meeting. He handed me a sheet of paper with four or five different short fact patterns on it, and he asked me to tell him what I’d do with each of them. The questions were issues I'd just studied the day before, so it was like magic. It felt like I was in the right place at the right time. He offered me the job on the spot. I went to work for him and never looked back. It obviously worked out really well. We did some insurance defense work, medical malpractice and other types of negligence defense, though the bulk of our practice was plaintiffs’ trial work. The incredible thing was I tried 12 cases my first year out of law school.

LD: What made you open up your own firm?

RM: After a few years, I found myself getting more disenchanted with insurance defense, so I decided to open my own office and do only plaintiffs’ work. About three days in, a lawyer walked into my office who had a case that was going to trial the following week and asked me if I would try the case. It is important to note that he had not been offered one penny. The morning the trial was to begin the claims manager on the case was a gentleman who I had previously done defense work with. I said hello and told him I was there to try that case. He immediately asked if we could talk settlement. We walked out to the hallway and within an hour I had negotiated a settlement which greatly pleased the client and referring lawyer and generated a very nice fee. So, within two weeks of opening my own practice, I had a little cash flow and a bit more confidence and here I am today. That was how my plaintiffs’ practice began.

Rather than asking for a specific dollar amount, I began suggesting an alternative analogy that a jury could actually relate to.

A few months after that, another lawyer came to me with a very significant trucking case. It was a wrongful death of an immigrant from Mexico who was married with two kids. He was killed by a truck driver who fell asleep behind the wheel. The lawyer asked if I would associate with him on the case. I agreed to associate with him but told him that I wanted control of the case as his file looked like somebody had thrown a hand grenade into a box of papers. He agreed. I took over and ultimately took the case to trial.

The defense lawyer was from Phoenix. He referred to the decedent like he was some kind of criminal because he was not a citizen and did not have a proper visa. He was making offensive comments like, “this guy couldn't even speak English,” and other derogatory remarks that I’m sure the jury did not like.

Tucson is a smaller community than Phoenix and is about an hour from the Mexican border. Tucsonans are very familiar with Spanish speaking people and while we may encounter some language barriers, we manage to communicate very well and treat each other with respect and dignity. So I said to the jury, “maybe in Phoenix, those types of remarks are acceptable but not in Tucson.” The jury agreed. The defendant was North American Van Lines, and its daily gross revenue was about $5M dollars. I argued that a fair verdict would be to award my clients a day or two of the company’s revenue. The jury awarded $10.6M dollars. At the time, this was 1981, that was probably one of the largest jury verdicts in Arizona. That case cemented my credentials and reputation as a plaintiff lawyer.

LD: That’s incredible – what a win.

RM: Yes, and it was a good lesson for me to learn how to present a case to a jury in a way that they could accept in terms of asking for a lot of money in damages. Rather than asking for a specific dollar amount, I began suggesting an alternative analogy that a jury could actually relate to.

LD: So that case really informed the way you worked moving forward?

RM: That’s right. For example, I was trying a police chase case where a young woman was killed. She was a Native American and the first person in her family to go to college. I told the jury “I don't know how to evaluate Anita's life, but I can tell you this, I was just listening to the radio and the Phoenix Suns are going to pay Dan Marley $5M to play basketball for one year.” I think, my goodness, how can I tell the jury what my thoughts are on what a person's life is worth? “I think the best thing would be if you all went back to the jury room, talk about it, and you come back and you tell Amanda and Larry what their daughter's life was worth.”

They came back with a $5M verdict. From that day forward, I've never asked a jury for a specific sum of money. I prefer suggesting other ways for them to consider awarding monetary damages and let them come up with their own numbers.

LD: That’s brilliant. Can you tell us about some of your recent cases?

RM: Last year I tried two cases. One was a medical malpractice case – a 75-year-old woman lost her non-dominant arm because of a bad surgery. They offered $3M to settle but my client was willing to trust the jury to do the right thing. The jury returned a $5.3M verdict for her which I thought was much more in line with what someone's arm should be worth.

The other verdict was another malpractice case where the hospital had left a sponge in a young woman after a straight-forward C-section. To make matters worse, the woman suffered from severe mental illness. Sadly, if you are diagnosed with mental illness, it follows you around like a ball and chain. It’s highlighted in every single medical record. She's a 22-year-old young woman and started complaining of abdominal pain soon after her son was born. Unfortunately, the doctors took one look at her records and dismissed her complaints. They said “you’re okay, it’s just post-op pain.”

This poor young woman suffered with this for a year until finally her mom insisted she take her to the hospital. They did a CAT scan and, of course, found a sponge. Sponges have a radiopaque marker on them that looks like metal that stands out when you take a CAT scan – it looked like a strip of metal was in her abdomen. Because of her mental illness, the nurse wrongly assumed she had swallowed some type of metal and didn’t believe her when she insisted she hadn’t.

I've learned to always put my clients’ needs ahead of anything else and let the final decision rest with the person it should rest with.

Finally, they called in a surgeon who is a remarkable woman. She looked at the scan and identified it as being a sponge they had left inside of her during her C-Section over a year prior. My client underwent a four-hour surgery to remove multiple adhesions that had grown in and around the sponge which had also migrated into her colon and necessitated removal of a portion of it. She now has to live with that for the rest of her life – digestive problems, intestinal problems and so forth. Because of her preexisting mental illness, it amplifies her worry and concern of future problems. I asked the jury to tell this hospital what Amanda's injury was worth. They came back and awarded her $4M, which was a wonderful verdict considering defense had offered her $100,000 in mediation. That trial was very satisfying because this young woman is soft spoken and polite and had been so disrespected.

LD: How many cases have you tried?

RM: Over 200. I was named a diplomat by the American Board of Trial Advocates. To obtain that recognition, you have to try over a hundred cases – we stopped counting at 200. I've enjoyed every case but that doesn't mean that I've won them all and that they've all been amazing verdicts, but certainly enough of them have been very significant. We either get very good settlements or we try the case, and we always do what the clients ask us to do. I never impose my will on them. I sometimes suggest rather strongly that we would do better if we went to trial but if the clients want to settle that is absolutely what we do. I've learned to always put my clients’ needs ahead of anything else and let the final decision rest with the person it should rest with.

Being a plaintiff in a lawsuit is intimidating and very stressful. Many clients may not want to go through the process of trial which I understand. Because trial is difficult, complex and time consuming, I think most lawyers would rather settle. There are very few of us that really enjoy trying cases. I'm not willing to give up what I think is in my clients’ best interest to settle and I am, obviously, not adverse to trial. I actually enjoy it. So to me, if the client shows any incentive at all or any interest at all in going to trial, then that's what we're going to do.

LD: How did you land on medical malpractice as your primary focus?

RM: Medical malpractice was something I found I enjoyed very early on, but the cases are also so much more labor intensive than the typical injury case. There are a lot of moving parts to every case and with medical malpractice, you've got to have multiple experts. It’s very expensive to prepare, to prosecute, and it's a vicious battle on all fronts. But I find they are the most gratifying. They are the most satisfying when you go to trial and get a nice verdict – it feels so good, and it truly helps improve the lives of my clients. While money does not bring a loved one back or change a permanent disability, the money makes their lives easier.

When I decided to focus my practice on medical malpractice over 20 years ago, I hired a couple of full-time nurses to work up the records, put together a comprehensive chronological timeline and organize the files. If you present medical malpractice cases properly, the jury gets an education on whatever the issue may be. It takes a while to get to the point where you can be comfortable presenting a case to a jury so that the jury feels involved and really understands and perhaps becomes fascinated by the medicine and how the pieces fit together. We've expanded in the last several years. I am so proud that my two sons have joined me. We now have six lawyers in the firm, four nurses and five paralegals. We have a great team.

LD: Wow! That’s great.

RM: It's such a meaningful and rewarding way to make a living and yet fun. You're doing something worthwhile – you have the opportunity to change people's lives. There are not many careers that have that important aspect.

I settled a case two weeks ago for $9.5M for a family whose little boy is now catastrophically brain injured because of medical negligence. That money is going to allow that little guy to live the best life he can possibly live because he will have access to all the things that might make his life a little better. It’s really nice to know that you've helped people who’ve suffered to be able to do things like that.

LD: Did your early work in tax law ever come into play again in your career?

RM: Never. I can't imagine what my life would've been like if I had gone to work for a big business firm. I’d probably be one of those big firm lawyers with a three-piece suit, but I can't imagine it. I mean, saving rich people and corporations money on their taxes hardly sounds satisfying to me. I’ve got better things to do with my time.