By: Jack Vales and Kristen Rodriguez

Before reviewing solutions to prevent and mitigate liability for escalating jury verdicts, it is important to understand the root causes of nuclear verdicts in personal injury and wrongful death cases. Principal among them are:

• Putting the Company on Trial: Plaintiffs’ lawyers have developed sophisticated trial strategies that shift the focus (and evidentiary burdens) of trials away from individual plaintiffs and toward corporate conduct. As applied, this strategy focuses on conduct of the corporate defendant that allegedly departs from a set of “safety” rules, whether real or manufactured by a plaintiff’s lawyer for the purposes of pursuing a claim. Often described as “reptile” strategies, this approach seeks to tap into the fears of jurors and to incite jurors to act to protect both themselves and the interests and safety of the larger community.
• Anchoring: In most US jurisdictions, there are no limits on the amount of non-economic damages that a jury may award outside the medical malpractice context. Similarly, in most jurisdictions, the law does not prevent plaintiffs’ lawyers from requesting a specific sum of non-economic damages. This leniency applies even where counsel does not introduce evidence during trial of a non-economic damages valuation or damages model. For these reasons, plaintiffs’ lawyers will often request huge sums of non-economic, pain and suffering damages in their jury presentations. In so doing, counsel seek to “anchor” the jury on extremely high sums, such that the jury comes to view damages awards lower than the “anchor” amount, but that are still extremely high, as a reasonable outcome.
• Multi-Plaintiff Trials: Another common strategy of the plaintiffs’ bar is to consolidate many plaintiffs together in the same trial. While this strategy appears benign on its face and supportive of the interests of judicial economy, the reality is that such trial formats dramatically improve the odds of trial success for plaintiffs. Indeed, a 2019 study of all multi-plaintiff product liability trials in federal court multidistrict litigation (MDL) proceedings during the previous 10 years reported that juries found in favor of plaintiffs more than 78% of the time in multi-plaintiff MDL trials, compared to less than 37% in single-plaintiff MDL trials.¹ By proceeding to trial on behalf of multiple plaintiffs claiming injury from the same product, plaintiffs’ counsel -- and indeed the Court -- enables the jury to overlook the infirmities in an individual plaintiff’s case by appealing to the “where there’s smoke, there’s fire” principle.

The above list, of course, is not exhaustive. Many other factors contribute to nuclear verdicts. These include but are not limited to:

• Forum shopping by plaintiffs’ counsel in an effort to bring cases in jurisdictions known to produce large jury verdicts.
• Permissive approaches taken by certain state courts to the admission of expert testimony, which has allowed the plaintiffs’ bar to rely on junk science to advance cases to juries.
• The changing composition of jury pools in a manner favorable to the plaintiffs’ bar.

• The availability of unlimited non-economic damages in most jurisdictions.
• The continued availability of punitive damages, which serve to magnify damages awards and enable the introduction of marginally relevant, but highly prejudicial corporate conduct evidence.
• The widespread use of third-party litigation funding, which has fueled the expansion of mass tort litigation in the US, including through ubiquitous attorney advertising.

While many of the above listed causes of nuclear verdicts are structural in nature and larger than any particular case, several causes are case-specific. Our Dentons trial series will focus on strategies and solutions to effectively combat the case-specific strategies employed by the plaintiffs’ bar to generate oversized jury awards – ranging from the inception of the case to closing arguments at trial. To learn more about these and other solutions, please contact your Dentons team.

1. U.S. Chamber of Commerce, Institute for Legal Reform, “Nuclear Verdicts: An Update on Trends, Causes, and Solutions” (May 2024) at p. 38 (internal citations omitted)↩

US Trial Strategy Series
Introduction to Dentons’ Trial Strategy Series
How to Build a Winning Defense Case – Pretrial Strategy

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