Nuclear verdicts – fact or fiction

These days the legal community is buzzing about “nuclear verdicts.” While there may not be a uniform definition of the term “nuclear verdicts” generally, the term is used to refer to any jury award that is significantly disproportionate to what would be expected given the damages in the case. Some suggest that the term should be limited to verdicts over $10 million. Your views on these large verdicts will undoubtedly range from delight to frustration, depending on what side of the podium you sit on. The question is whether jury verdicts truly are significantly higher these days than in the past, and if so why.

The short answer is yes. In the last several years, numerous verdicts have appeared shockingly disproportionate to the actual damages, but this is not the complete answer to the question. There have also been many significant verdicts that, while thought to be disproportionate, are within reason for the catastrophic harm suffered. Further, other factors exist encouraging lawyers to label large verdicts as nuclear. In reality, those verdicts are within the reasonable range of the anticipated damages when properly considering liability, damages, and other variables the jury considers when arriving at a verdict.

One explanation for large verdicts in recent years is changes in juror attitudes. Those of us that spend much of our time in courtrooms picking juries have noticed that jurors these days appear extremely hostile and distrustful of corporations. These strongly held preconceived thoughts about corporations that jurors bring to jury service make them more inclined to award a verdict that may have a punitive component to the general damages to right what they feel is systematic unpunished corporate misconduct.

We also see a much higher number of jurors who suffer from depression, emotional distress, and post-traumatic stress disorder. They are very receptive to claims of distress and damages affecting a person’s quality of life. The pandemic has left jurors with a much greater understanding of other people’s suffering and has reaffirmed to them the importance of family and good health. If plaintiff attorneys can tap into these core values combined with a corporate defendant engaged in negligent or reckless conduct, often large verdicts result.

Another reason we hear a lot about “nuclear verdicts” is that huge verdicts make interesting attention-grabbing headlines, whether in print, on a teaser for the evening news, or in an Instagram post. In most cases, most juries, mostly every time, award very fair and reasonable damages, but it is not interesting or newsworthy. The label “Nuclear Verdicts” gets attention; it puts fear in insurance adjusters. It is great for the business of defending lawsuits. A simple google search of the term will produce results of an entirely new industry for businesses and insurance companies to prevent themselves from being the next victim of these large verdicts. Bob Tyson, a skilled trial attorney with Tyson Mendes has a “Resource Center” to help stop these claimed Nuclear Verdicts. He also has a book and seminar program to teach defense lawyers how to prevent being on the wrong side of one of these nuclear verdicts.

Large verdicts, even ones that apparently shock reasonable defense-minded attorneys, are nothing new. Lawyers have complained about large verdicts for as long as attorneys have been trying cases. In 1964, an attorney named Jack Fuchsberg obtained the first million-dollar jury verdict ($1.2 million) for a young boy injured in an accident. Today, $1.2 million is equivalent to about $10 million.

Some of the verdicts labeled publicly as Nuclear on the “Nuclear Verdict Tracker” do not seem to rise to the level of excessiveness one would expect to be a part of this dubious club. A smoker suffering from cancer in Florida was awarded $10 million in damage against a tobacco company with half the award for punitive damages; an ex-sheriff in Missouri employed for 30 years and wrongfully terminated was awarded $6.98 million for age and disability discrimination; a drunk driver in Nevada killed a man and the jury awarded $11 million dollars to his kids for his wrongful death; a California man who suffered a traumatic brain injury from a slip and fall was awarded $750,000 in past pain and suffering and $3.5 million in future pain and suffering for a total award of $4.2 million; $10 million was awarded to Florida parents for the wrongful death of their son by the driver of a recreational vehicle; $13 million awarded to a five-year-old girl who was sexually molested for over an hour at daycare by a 13-year-old boy. True, the samples selected were some of the more modest claimed nuclear verdicts, but there are also many other examples of very large verdicts.

The list includes Carney Shegarian’s recent wrongful termination verdict for $155 million against Farmers Insurance classified as nuclear. It is worth mentioning that the compensatory damages were $5.4 million, but the award for punitive damages was $150 million. By law, punitive damages are intended to punish the defendant to deter future similar wrongful conduct and must bear some reasonable relationship to the assets of the defendant. The jury assessed punitive damages of $150 million against two insurance companies each with assets over $50 billion. While the verdict appears extremely large, the amount of the punitive damage award is not disproportionate to the assets of the defendant who the jury determined acted with malice.

Corporate distrust and people suffering emotional distress may not be anything new, but the level of corporate distrust and the number of people suffering emotional distress is new. Plaintiff lawyers have also become more skilled at identifying jurors ready to award significant damages and tapping into their anger. Likewise, defense attorneys are getting better at fighting the trend toward higher verdicts. Whether we call them nuclear, outrageous, or just right depends mainly on who is assessing them. One thing is for certain, the art of advocacy is a wonderful skill constantly evolving, and as trial lawyers, we need to continually work to do the best possible job we can for our clients.