Sidebar – Nuclear Verdicts Are Becoming Thermonuclear Verdicts: A Suggestion For Combatting Them
By Melinda S. Kollross
Some commentators have defined a “nuclear verdict” as a verdict of $10 million or greater. Based upon recent verdicts, however, that definition may need changing.
The Thermonuclear Verdict
Two recent verdicts show that things are getting worse on the defense front and not better.
In June of 2022, a Los Angeles, California jury went “thermonuclear” in a sexual harassment employment case with a verdict of $464.5 million. The verdict was comprised of $24.6 million in compensatory damages and $440 million in punitive damages. The plaintiffs were men who claimed that they were forced out of their jobs after complaining about sexual and racial harassment.
And in August of 2022, a Georgia jury awarded a staggering $1.7 billion in punitive damages against Ford Motors a day after awarding $24 million in wrongful death damages. Plaintiffs claimed that their decedent parents were killed by a design defect in the roof of the Ford F-250 which failed to protect the decedents in a rollover crash. Plaintiff’s counsel likened the protections offered by the Ford roof as driving in a “convertible”.
These verdicts are nowhere near a level of just $10 million. These verdicts are instead “thermonuclear” verdicts, which are more aptly defined, as one commentator put it, as a “classic disproportionate response” …a verdict that “far exceeds a reasonable damages amount that only emotional or punitive juror motives can adequately explain it”.
A Suggestion For Combatting The Nuclear/Thermonuclear Verdict: Embed Appellate Counsel At Trial
If the insurance and defense industry is to corral these runaway verdicts, they must stop the game-playing the plaintiff’s personal injury bar is so good at. The plaintiff’s PI bar utilizes these “games” not for the sake of justice, but for the sake of getting a thermonuclear award. Appellate counsel can help put a stop to this; while your trial counsel focuses on trying your case, appellate counsel can focus on stopping or curtailing the “games plaintiff’s play,” while at the same time making sure your record is properly preserved for any appeal.
Appellate counsel can handle the research, brief writing, and oral motion practice to demand discovery of who has the real financial interest in PI litigation—and argue for letting the jury hear this.
Through aggressive motion in limine practice, Appellate counsel can show the trial court that any use of this “reptile strategy” should be barred as being nothing more than an illegal Golden Rule argument.
Anchoring the Jury:
Another favorite ploy of the plaintiff’s PI bar to hike up a damage award is
to take numbers out of thin air and suggest those to the jury in closing argument as reasonable compensation, especially for non-economic losses and punitive damages. The “game” is called “anchoring”, and countless studies have shown a correlation between the numbers the plaintiffs throw out and the amount a jury eventually awards. Again, through an aggressive motion in limine practice, Appellate counsel can help to put a stop to this.
A Real-Life Example Of The Wisdom Of Embedding Appellate Counsel
The author, and her Appellate and Trial Monitoring Practice Group, are routinely retained to work high exposure trials as embedded Appellate counsel to combat nuclear and thermonuclear verdicts and make sure a record is preserved for appeal. In one such case that was tried in the dangerous venue and recognized judicial hellhole of Cook County Illinois, our embedded Appellate counsel researched the plaintiff’s counsel, discovering that plaintiff’s counsel had put on his website the closing argument in another case where he had obtained a “thermonuclear” verdict. Upon close examination of the closing argument, it was determined that most of it was objectionable, and a motion in limine was prepared to prevent plaintiff’s counsel from repeating these objectionable arguments in the case being monitored. The motion in limine was presented to the trial court right before closing argument, and the trial court granted most of the motion. This left plaintiff’s counsel almost “speechless” during his closing argument and a not guilty was returned by the jury. Hence, the wisdom of embedding Appellate counsel in high exposure trials.