Preventing Nuclear Verdicts: Pushing for Lawsuit Reform
$411 million.
This week a Florida jury awarded $411 million to one individual injured in a motor vehicle accident against a one-truck trucking company. The motorcyclist was severely and permanently injured, and likely deserved compensation from the trucking company. But $411 million? Where does it end?
Business owners today rightfully lament the nuclear verdicts hitting their industries. Business owners shake their heads at plaintiffs winning 7, 8, even 9 figure verdicts in cases that seem preposterous. Grocery stores have lost suits brought by customers injured by burglars. Manufacturers have lost suits based on remote fears of scientifically de-bunked ties between cause and effect. Trucking companies have lost suits when their trucks stay in their lane, drive under the speed limit, and get hit by someone crossing medians and multiple lanes of traffic.
Plaintiffs attack you, not the accident
Plaintiff lawyers are not dumb. They know what they are doing. They make suits like these about the businesses, not about the accidents or the facts of the case. The plaintiffs are captivating story shapers and story tellers. They discount what happened in the accident itself, and instead focus on the business in the background and build a story of extreme neglect at the highest levels of the business.
Take the Texas jury that awarded almost $90 million to a family injured in an accident involving a tractor-trailer operated by Werner Enterprises. The family suffered a horrific and tragic loss. One family member died, one was permanently injured, and others significantly hurt. No person could dispute how much the family suffered, and everyone would agree no amount of money would sufficiently compensate them for their loss.
The plaintiff’s attorney did a wonderful job spinning a story of neglect at Werner Enterprises. The attorneys got the jury to focus on weather warnings and driver training programs at Werner. The attorneys got the jury to ignore what actually happened in the accident. The attorneys got the jury to ignore the plaintiff speeding in his own lane in an ice storm, losing control of his own vehicle, crossing multiple lanes of traffic, crossing a divided interstate, and crashing into a tractor-trailer driving under the speed limit in its own lane under control. The plaintiff’s attorneys made the case about Werner, not about the accident.
It is no wonder some business owners see $90 million verdicts in cases like that and throw up their hands. The fight can feel lost.
But it does not have to be.
Businesses can fight back in two ways: building your defense before the accident and pushing for tort reform in the courts and at the legislature.
Build your defense before the accident
Plaintiff’s attorneys are great storytellers. They love to make the story of their cases about the defendant, not about the accident. As you develop your risk management programs and policies keep that in mind. What is your business’ story? How can you develop a risk management program that tells the story of a business that proactively works to prevent accidents and injuries?
Juries want to know if your business is going above and beyond when it comes to safety and injury prevention. Juries want to know you are thinking ahead, anticipating possible risks before they occur, and working to prevent rather than manage. Today good risk management practices include new technologies, and a lot of new data. Get a good handle on that technology and that data. Make sure you know what data you are getting, and make sure you are using it. Plaintiff attorneys love to find you in a position of having a whole lot of data you are not using. That is a great set up for them to tell the story of you being asleep at the wheel.
Make sure your people are providing critical analysis and individualized assessments of possible risks, and make sure they are not just checking boxes on a daily task list. For example, if you have set a sort of cutoff in your safety data to prioritize higher risk individuals from others, make sure you have a way of addressing the individuals nearing your cutoff, not just those that are over your cutoff. That shows the jury you are critically thinking, anticipating future problems and proactively addressing them.
Those are some of the things you can do in your business to defend your business against nuclear verdicts. You can do more outside of your business by pushing for lawsuit reform.
It is time to get in the fight on lawsuit reform
Lawsuit reform, or tort reform, can come in different forms. It can be in the form of legislation, administrative rulemaking, and court precedent. Lawsuit reform is not just liability caps. Liability caps would be great, but lawsuit reform can be sensible rules of discovery in trials that limit fishing expeditions, rules of evidence that focus on actual damages not inflated charges, pre and post judgment interest rates that are actual market rates, not usury rates, and more. In 2020 sensible lawsuit reform legislation was passed in Louisiana and introduced in several other states including Iowa and Missouri.
Getting lawsuit reform in place faces one major obstacle. That obstacle is the political priority list. For plaintiff attorneys they really only have one professional political priority and that is preventing any kind of lawsuit reform. Businesses on the other hand have many items on their professional political priority list. Their lists will include regulations that permeate their entire business, taxes, funding, and more. Lawsuit reform is usually on the list, but it usually isn’t at the top.
The plaintiff’s bar can focus its time, influence, and money solely on lawsuit reform. They write briefs in support of their brethren in notable appellate and supreme court cases all around the country to get the precedents they need. They are active in the judicial nomination and selection process at the local level. They are active in the process when judicial and administrative committees set about reworking procedural rules. And most significantly, they are active with allied legislators to defend against any lawsuit reforms efforts.
I don’t say these things to paint plaintiff attorneys as terrible beings. Most are very good, ethical attorneys that represent their clients to the very best of their abilities. Juries put the big numbers on the cases. Like any profession there are some bad apples. But they are not bad because they choose to fight for rules that favor their clients and their business models. Business owners can and should be doing the same thing. What we must do is even out the priority list. If we are going to make meaningful lawsuit reform around the country, we must make lawsuit reform a higher priority with our time, influence and money. We must support brief-writing in key appellate and supreme court cases that will make for good precedent. We must engage in the rulemaking progress, and we must push our legislators to move lawsuit reform legislation forward. Talk to your trade associations about what you and your associations can do to prioritize lawsuit reform. Reach out to your state lawsuit reform association (in Minnesota it is the Minnesotans for Lawsuit Reform – contact me for more info), your state chamber of commerce, the U.S. Chamber of Commerce, or the American Tort Reform Association and support efforts for sensible lawsuit reform legislation around the country. Talk to your attorneys and push them for specific reforms businesses like yours should be pushing to pass. Remember, lawsuit reform is primarily a state and local issue. Progress will be made by being engaged on the issue where your business operates.
The intent of lawsuit reform is not to help businesses get away scot-free from obligations to protect those that are harmed by businesses. The intent of lawsuit reform is to make sure courts and juries focus on the actual harm, who or what actually caused the harm, and reasonably compensating those victims. By making lawsuit reform a high priority we can make a difference and bring some sensibility to the courts.