Generally, a nuclear verdict is defined as a jury award in which the penalty exceeds $10 million. A more accurate definition is any award that is significantly disproportionate to what would be expected given the economic damages in the case. In the modern era of trucking industry lawsuits, these nuclear verdicts appear to be on the rise, and unfortunately, here to stay.
In fact, between 1990 and 1994 the median verdict was $190,000, which represented a 90 percent increase when compared to verdicts between 1985 to 1989. Fast forward to 2017, the average size of trucking verdicts exponentially grew by 483 percent by 2018. Compare this to 2006 when there were only four cases with awards in excess of $1 million. Just seven years later, in 2013, that number increased by nearly eighteen times, with nearly seventy verdict awards exceeding $1 million.
Most recently, in August of 2019, what is believed to be the largest verdict ever against a trucking company was handed down by a jury in Columbus, Georgia. After just 45 minutes of deliberation, the jury awarded a verdict of $280 million against Schnitzer Southeast and Schnitzer Steel. The verdict was compromised of $150 million in wrongful death damages, $30 million in pain and suffering and $100 million in punitive damages. This verdict exemplifies the growing and resilient trend of increasing verdicts in the trucking industry.
According to John Kearny, the CEO of Advanced Training Systems, the trucking industry litigation environment has drastically changed as plaintiff’s lawyers began to include companies as named defendants in the lawsuits. The general theory in which trucking companies are named as defendants relies on allegations that the trucking company negligently hired, trained, supervised and/or retained the negligent driver. As a result, in a time when society is increasingly being framed as the little guy versus the big company, the mere existence of a trucking company in the lawsuit makes jurors more likely to be emotionally enflamed against the big corporate defendant—a strategy the plaintiff’s bar has been keen on taking advantage of.
Framing the trucking company as a greedy corporate defendant invokes what is called the Reptile Theory—intentionally appealing to the juror’s emotions rather than facts and reason. In taking advantage of the Reptile Theory, the Plaintiff’s bar has increasingly emphasized four main themes in their arguments to get the jury to go “nuclear.” These four themes include:
- The defendant was careless;
- The defendant placed profits over safety;
- The defense refuses to accept responsibility;
- The defense is trying to get a discount
In conjunction with the themes above, the Plaintiff’s bar actively targets the non-economic damages element of the verdict. The non-economic damages aspect of a verdict includes the human element of damages—otherwise, the non-quantifiable amount of pain and suffering or emotional distress plaintiff’s injury has caused.
Given the apparent victories of the plaintiff’s bar in continually ratcheting up verdicts, defense counsel needs to reimagine and rework their strategies to combat these nuclear verdicts. As a matter of practice, defense counsel should proactively combat this strategy by filing a motion in limine to exclude Reptilian evidence from the outset.
Importantly, defense counsel would be wise in attempting to personalize their corporate clients. This can be done via narratives in both the opening and closing statements supported by witness testimony in between. The goal is to highlight some of the positives of the client including providing living wage careers for many employees.
Lastly, mitigating damages is a crucial strategy for defense counsel in the era of rising verdicts. The best way to combat these so-called runaway verdicts is to present a “defense number”—a verdict in which the defense argues is the reasonable amount of compensation—as early as possible. Throughout the trial continually refer to the defense number so the jurors become comfortable with the initial number. Formulating the defense number should be carefully deliberated with the defense team and the client.
In conclusion, nuclear verdicts are an inevitable obstacle facing trucking companies in litigation. Competent defense counsel can combat this reality by infusing empathy and responsibility into their strategy. Further, defense counsel must be prepared at trial to introduce their number and support this number aggressively with evidence throughout the trial.
The attorneys at Poole Shaffery & Koegle, LLP stand ready to implement the newest strategies to face the harsh realities of nuclear verdicts facing the trucking industry.