In September 2022, the US Chamber of Commerce Institute for legal reform published a report entitled “Nuclear Verdicts – Trends, Causes and Solutions.”
https://instituteforlegalreform.com/research/nuclear-verdicts-trends-causes-and-solutions/ It reported large verdicts it labeled “Nuclear Verdicts” and the terrible consequences it warned would follow if not stopped. It is filled with false allegations and exaggerated claims of social and threats with false warnings of economic harm. However, the paper is worth reading in order to get a view of the recommended legislative and trial efforts to combat large verdicts. It also offers reasons for the large verdicts. Both are helpful for plaintiff lawyers to be aware of.
This paper claimed to have analyzed 1376 nuclear verdicts between 2010 and 2019. It noted that about half of the verdicts were between ten million and twenty million, about one third were between twenty million and fifty million. It called attention to a June 2022 California verdict in a sexual harassment employment case resulted “thermal nuclear verdict” of $464 million. The paper reported that product liability, auto accidents and medical liability cases compromise roughly two thirds of the reported nuclear verdicts. In addition, it noted that juries in state courts, not federal courts, produce the majority of all of these verdicts. For example, state courts reported nine out of ten nuclear verdicts in personal-injury and wrongful death cases during a ten-year study. Furthermore, California, Florida, New York Texas Pennsylvania and Illinois account for 63% of all the nuclear verdicts during the ten-year period studied. A key assertion in this study was that nuclear verdicts are increasing in both amount and frequency.
The paper notes COVID caused businesses to change operational standards and, in many instances negatively affected the popular opinion of corporations. The question was: what impact will ending the Covid pandemic have regarding jury verdicts? The paper concludes that when the courts fully reopened in 2021, “juries went back to awarding liability claimants huge damages particularly in the auto liability area.” The report suggests that many insurers covering corporations for large claims to expect the trend to continue to grow due to social changes including legal advertising, litigation financing, class-action lawsuits and growing public distress of corporations.
As a result, the paper warns that the “real world implications” do more than lay bare problems in the civil justice system. It warned:
“They adversely affect everyone in society in very real ways. In addition to increasing the costs of everyday items and services—including food, housing, and medical care— and potentially creating insurability problems, escalating lawsuit costs can stymie economic opportunity. They can threaten the viability of any business, and with it the jobs of its employees and others in a community whose livelihoods are connected to the business. Rising lawsuit costs can also inhibit job growth and new investments for businesses or industries, needlessly exhaust judicial resources, and erode basic confidence in the rule of law, all of which can have far-reaching adverse impacts.”
Included in the adverse impact the paper asserts these verdicts have, it claimed the notorious environmental toxic weed killer Round Up was invaluable to agriculture. The paper made the ridiculous assertion that verdicts against this product “affected the continued production and use of the number one agricultural chemical and America. The paper asserts that this “ product plays an invaluable role in agricultural worldwide especially as a growing population increases the demand for food.” In fact, it had a unique role in causing irreparable damage to people and the environment.
While this paper offers self-serving reasons for large verdicts, a more likely reason is because of increasingly changing economic amounts becoming common.
A DecisionQuest6 study from 2018 that interviewed potential jurors really drives home how society views large companies today:
Another societal shift is a marked desensitization in the public’s perception of large amounts of money. In 2022, there were two lottery drawings with jackpots over $1 billion; Elon Musk purchased Twitter for $44 billion; and the Denver Broncos were sold to Walmart heir Rob Walton’s owner team for $4.65 billion, a North American sports team record. My team, the Washington Commanders, is reportedly for sale, with a potential price tag over $7 billion. In addition, the media reported heavily on the federal government’s payouts during the COVID-19 pandemic–spending $800 billion in Paycheck Protection Program (“PPP”) forgivable loans to small businesses, and $931 billion in direct stimulus checks to individuals.
The paper claims that these factors are the primary causes. Here is how the paper describes them:
As to anchoring, it claims plaintiff lawyers “use a tactic to create anger in jurors and produce huge verdicts by attempting to anchor the prospective jurors at high potential numbers for the jury verdict. They do this by asking one simple question during jury selection: “If the facts and the law support a finding of $40 million in this case, could you return a $40 million verdict?” Jurors will respond – some will say they could not, and some prospective jurors will question the extent of the injuries. The plaintiff’s attorney will immediately ask the judge to remove these jurors because they are biased against the plaintiff.”
Defense firms suggest that anchoring issue should be met with objections when the plaintiff lawyer attempts to set a high anchor number:
“When the plaintiff’s lawyer asks if the law and the facts support an award of $40 million, you must immediately object, then go to sidebar, with the court reporter, and object to the same. You must point out plaintiff’s attorney is trying to anchor the jury at a higher amount and explain that if this juror answers no, plaintiff’s attorney will then turn around and argue to the court this juror is biased against his client. What this does is create a venire of potential jurors who have already told plaintiff’s attorney they can return a $40 million verdict if the facts and the law support it. You must remind the judge you should have a chance to question this juror and other jurors prior to anyone being removed from the panel.
Make a record. Move for a mistrial. Be a bother. Point out to the court that haste does make waste and that a decision by the judge, without a full opportunity for you to question the witness and to otherwise influence the venire as the plaintiff is doing, is bias and is improper. Lastly, if the plaintiff is upset at this juror, explain that the plaintiff’s attorney can certainly use one of his peremptory challenges – rather than having the court make a determination someone is biased and removing them for cause based on a flimsy argument the juror will not pre-commit to an award of that magnitude.
During voir dire, ask the jurors questions with reference to the value of the case, anchoring them to a lower award amount. You might say something to the effect of: “Mr. Smith, the plaintiff lawyer, asked you if the law and the facts supported an award of $40 million, could you award $40 million. However, should the law and the facts in this case support a verdict in the amount of $700,000.00, could you return a verdict for the reasonable sum of $700,000?” Anchor them at the lower figure. Too often, defense lawyers don’t do anything to give a contrast to these jurors – jurors who have no idea as to the value of a lawsuit. As far as these jurors know, they are doing you a favor when they return a verdict of $10 million.”
So, what does the Chamber article suggest be done about it? The paper concludes that among the remedies they suggest: “the better approach is for state legislators to take these baseless and manipulative arguments off the table for use in jury trials. This can be accomplished by something as straightforward as a one sentence reform stating that no party or counsel may refer to a specific dollar amount, state a range or offer a formula to suggest to the jury and amount to award for non-economic damages.”
In addition, the paper applauds the idea that: “legislators can also enact laws that respond to nuclear verdicts. For example, states have adopted limits on pain-and-suffering awards.”
It’s obvious that insurance companies, big corporations and big business are going to pull out all stops in preventing significant verdicts through the legislature, propaganda and the judicial system. The paper does us the favor of identifying the trial areas that encourage fair verdicts. We should learn from this revelation.