Nuclear
Verdicts
Trends, Causes,
and Solutions
September 2022
Contents
01
02
03
Chapter Chapter Chapter
1
2
3
3
4
Executive
Summary
Drivers of
Nuclear Verdicts
Real World
Implications
Recommendations
5
6
7
8
9
Nuclear
Verdict
Trends
Case Breakdown
The Size of Nuclear
Means and Extremes
Nuclear Verdicts
Are More Frequent
13
15
16
17
18
20
20
21
Top States
for Nuclear
Verdicts
Florida
California
New York
Texas
Pennsylvania
Illinois
Cary Silverman and Christopher E. Appel,
Shook, Hardy & Bacon L.L.P.
© U.S. Chamber of Commerce Institute
This publication, or part thereof, may not
be reproduced in any form without the
written permission of the U.S. Chamber of
39
40
41
42
43
43
Solutions
Adopt Pre- and
Post-Nuclear Verdict
Civil Justice Reforms
Promote Sound
Science in
the Courtroom
Adopt Third Party
Disclosure
Prohibit
Manipulation of
04 05 06
07
Chapter Chapter Chapter
23
24
25
26
28
31
Nuclear
Verdicts
Reptile Tactics
The Rise in
Noneconomic
Public and Jury Pool
Nuclear Verdicts
The Rise of
Third Party
33
34
36
37
38
Real World
Implications
Insurability Problems
Unreasonable
Demands
Loss of Confidence
in the Rule of Law
45
47
49
Conclusion
Endnotes
Chapter
Chapter
1 | U.S. Chamber of Commerce Institute for Legal Reform
Chapter 01
01
Executive
Summary
Chapter
U.S. Chamber of Commerce Institute for Legal Reform | 2
Chapter 01
This analysis focuses
on these extreme and
fundamentally unpredictable
verdicts because they play
an outsized role in the civil
justice system. These jury
awards are “nuclear” in the
sense that such a verdict
impacts on businesses,
entire industries, and
a verdict is later thrown out
or substantially reduced by
an appellate court. These
verdicts can drive up the
adversely affect the cost
and availability of insurance,
and undermine fundamental
fairness and predictability
in the rule of law.
To be sure, cases that
result in nuclear verdicts
can involve catastrophic,
deaths. Two questions arise
whether the defendant’s
conduct actually caused
the plaintiff’s injury or
whether skilled attorneys
manipulated jurors into
second is how much is
a reasonable amount of
compensation for an injury.
In many cases, there is no
clear and objective way to
place a monetary value on
the injuries claimed by the
plaintiff. Awards in the tens
and hundreds of millions,
and even billions of dollars,
however, are often far
compensatory purpose.
why unsupportable nuclear
efforts by members of the
plaintiffs’ bar to further
escalate these verdicts, is
what can and should be
done to curb them.
This paper analyzes
1,376 nuclear verdicts
between 2010 and 2019.
1
Approximately half of these
verdicts were between $10
million and $20 million,
and about one-third were
between $20 million and
16% of nuclear verdicts
exceeded $50 million; a
exceeded $100 million.
A key takeaway of the study
is that nuclear verdicts are
and frequency. The median
nuclear verdict increased
27.5% over the ten-year
Nuclear verdicts—dened as jury verdicts of $10 million or more—are
on the rise. This paper analyzes nuclear verdicts in personal injury and
wrongful death cases over a ten-year period between 2010 and 2019,
discussing national and state trends, causes of nuclear verdicts,
real-world implications of these verdicts, and solutions to improve
fairness in damage awards.
3 | U.S. Chamber of Commerce Institute for Legal Reform
Chapter 01
clear upward trend in the
frequency of nuclear
verdicts over time.
The study also revealed
concentrations of nuclear
verdicts with respect
to types of cases and
jurisdictions. Product
liability, auto accident,
and medical liability
two-thirds of the reported
nuclear verdicts. Juries in
state courts, as compared
to federal courts, also
produced the vast majority
of all nuclear verdicts. Half
a dozen states, namely
California, Florida, New
York, Texas, Pennsylvania,
and Illinois, hosted around
63% of the nuclear verdicts
study period. By way of
comparison, these states
accounted for about 41% of
divide in nuclear verdicts
“per capita.”
2
Many reported nuclear
verdicts did not include
a complete breakdown of
but where that information
was available it showed
that nuclear verdicts
consist primarily of
awards of noneconomic
economic compensatory
accounted for only around
This means that the lion’s
share of nuclear verdicts
period are attributable
assessments by jurors that
Drivers of
Nuclear Verdicts
Nuclear verdicts are fueled
by a variety of direct and
indirect factors. In the
courtroom, plaintiffs’ lawyers
often use tactics that
manipulate juror behavior
example, resort to so-called
“reptile theory” tactics that
aim to instill a sense of fear
so they lash out at their
perceived attackers with
Plaintiffs’ lawyers may
that jurors will often rely on
are totally arbitrary.
Outside the courtroom,
touts extraordinary verdicts
and shapes potential
jurors’ views of appropriate
compensation. Plaintiffs’
return on their investment,
which contributes to nuclear
reasonable settlement.
Real World
Implications
Increases in the frequency
and amount of nuclear
verdicts do more than
lay bare problems in the
civil justice system.
U.S. Chamber of Commerce Institute for Legal Reform | 4
Chapter 01
They adversely affect
everyone in society in
very real ways. In addition
of everyday items and
insurability problems,
can stymie economic
opportunity. They can
threaten the viability of
any business, and with it
the jobs of its employees
and others in a community
whose livelihoods are
connected to the business.
investments for businesses
or industries, needlessly
exhaust judicial resources,
in the rule of law, all of
adverse impacts.
Recommendations
Because there is no
and should adopt a variety
of reforms, many of which
are set forth in the Institute
101 Ways
Systems,
3
core causes of nuclear
adopt sound civil justice
reforms that reduce the
they occur and respond
to unjust awards that
do occur. They can
some of these verdicts.
They can require
practices in lawsuit ads.
And they can prohibit
baseless and manipulative
trial lawyer tactics, such
as arbitrary anchoring
these reforms can restore
predictability in jury awards.
5 | U.S. Chamber of Commerce Institute for Legal Reform
Chapter 01
02
Nuclear
Verdict Trends
Chapter
U.S. Chamber of Commerce Institute for Legal Reform | 6
Chapter 02
This paper analyzes 1,376 reported nuclear verdicts (jury verdicts of
$10million or more) in personal injury and wrongful death cases over a
ten-year period between 2010 and 2019.
Case Breakdown
Nationwide, nuclear
verdicts in personal injury
were most frequent in
product liability (23.6%),
auto accident (22.8%), and
medical liability (20.6%)
cases. These three areas
made up two-thirds of
nuclear verdicts in personal
study period.
Product liability trials
verdicts included cases
automobiles, herbicides,
and talcum powder
products. Tobacco and
asbestos claims also led
to several nuclear verdicts.
from auto accidents arose in a
severe injuries or deaths.
While any auto accident case
can involve catastrophic
injuries and deaths,
primarily tractor-trailers,
are particularly susceptible
to nuclear verdicts. About
one in four auto accident
trials that resulted in a
verdict of $10 million or more
4
The most common types
of medical liability cases
verdicts include lawsuits
resident’s death resulted
from substandard care at a
was born with permanent
injuries due to complications
have avoided.
Figure 1: Nuclear Verdicts by Case Type, 2010 – 2019
Medical Liability
Premises Liability
Miscellaneous
Intentional Tort
Product Liability
Auto Accident
2.6%
7.9%
22.8%
20.6%
7.1%
15.4%
23.6%
7 | U.S. Chamber of Commerce Institute for Legal Reform
Chapter 02
Premises liability (15.4%),
intentional tort (7.1%), and
miscellaneous claims (2.6%)
shares of nuclear verdict
awards. Premises liability
claims encompass a broad
outside of the workers’
compensation system to
the collapse of a city bus
claims include, for example,
or supervised an employee
security to prevent a crime
committed by a third party
on its property. Intentional
tort claims that result in
nuclear verdicts are often
perpetrator of a serious
crime; however, these cases
also sometimes include
business defendants. Given
many intentional torts, it is
misconduct comprises
a relatively small overall
unintentional conduct
businesses, on the other
hand, account for the vast
majority of nuclear verdicts.
vary from year to year but
over the ten-year period.
As discussed below,
however, the case mix
state to state.
The Size of Nuclear
The median reported nuclear
verdict between 2010 and
2019 was $20 million.
Intentional tort cases had
verdict ($29 million), followed
by product liability ($23
million), and medical liability
($20 million) cases. Other
accident, premises liability,
and miscellaneous cases
Overall, nearly half of
nuclear verdicts (49%)
and $20 million. Around
one-third of nuclear
verdicts (35%) were between
more constituted 16% of
reported nuclear verdicts
over the ten-year period.
from year to year, the data
shows an upward trend
line. The median reported
nuclear verdict increased
$24.6 million in 2019. This
represents a 27.5% cumulative
increase in the median
nuclear verdict over a ten-year
by about 17.2%. The rise in
the median reported nuclear
verdict was particularly steep
in auto accident cases
(up 63.2% from $15.2 million
in 2010 to $24.8 million in
2019) and product liability
cases (up 53.2% from $23
million in 2010 to $35.1 million
in 2019), as shown below.
“ About one in four auto accident trials that
resulted in a verdict of $10 million or more
involved a trucking company.”
Chapter 02
U.S. Chamber of Commerce Institute for Legal Reform | 8
Chapter 02
Means and
Extremes
to trial or settle a case and, if
so, how much is a reasonable
settlement amount,
businesses must consider
the worst-case scenario.
While the median nuclear
the mean is substantially
results from the occasional
award in the hundreds of
millions or billions of dollars.
There were 101 reports of
“ These levels are
rising. While the
median uctuates
from year to year,
the data shows an
upward trend line.”
All Verdicts
Trends (All Verdicts) Trends (Auto Accident) Trends (Product Liability)
Auto Accident Product Liability
The solid lines in the graph show the median reported nuclear verdict each year for all verdicts, and auto accident
and product liability cases in particular. The dotted lines show the trend for each within the ten-year study period.
2010 2011 2012 2013 2014 2015 2016 2017 2018 2019
$0
$5
$10
$15
$20
$40
$30
$25
$35
Figure 2: Median Nuclear Verdict & Trend Line, 2010 – 2019
$ Millions
9 | U.S. Chamber of Commerce Institute for Legal Reform
Chapter 02
ten-year study period. This
between $100 million and
$500 million, six verdicts
between $500 million and
$1 billion, and nine verdicts
of $1 billion or more. The
product liability actions.
Awards at these levels
reduced by a trial court or
reversed on appeal.
5
These
are also, in some cases,
symbolic and uncollectable,
particularly when imposed
on an individual or small
business. Nevertheless, a
must consider the cost of
to its brand and harm
to shareholders from
adverse publicity, even if
overturned or the award
is reduced to a fraction of
6
When a
reduced or uncollectable,
plaintiffs’ lawyers often
still tout the award in
(discussed in Chapter 4).
Nuclear Verdicts
Are More Frequent
The number of reported
unpredictability and outlier
nature. While there is year-
to-year variation, the data
shows an upward trend in
the frequency of reported
nuclear verdicts in personal
cases over the ten-year
study period. The upward
trend in the frequency
of nuclear verdicts is
present across all case
types with the exception
of intentional tort claims.
Nuclear Verdicts Often
Do Not Result From
Punitive Damage Awards
typically (but not always)
include a substantial
Litigation Type Mean Nuclear Verdict
Product Liability $191.6 Million
Intentional Tort
$90.6 Million
Ot
$40.8 Million
Medical Liability
$36.8 Million
Auto Accident
$33.8 Million
Premises Liability
$31.7 Million
Miscellaneous
$28.4 Million
All Personal Injury /
$76 Million
Table 1: Mean Nuclear Verdict by
Litigation Type, 2010 – 2019
Chapter 02
U.S. Chamber of Commerce Institute for Legal Reform | 10
Chapter 02
Trend ($50M or More)
$50M or More
one of the nine nuclear
$1 billion in the sample
were primarily punitive
“ordinary” nuclear verdicts,
however, are entirely
The U.S. Supreme Court’s
adoption of due process
reforms, have left personal
injury lawyers to seek
alternative ways to obtain
discussed later in this
paper, the result is that
some plaintiffs’ lawyers
other forms of noneconomic
supports this observation.
While intentional tort and
product liability cases are
more likely to include a
overall, three-quarters of
Figure 3: Number of Reported Nuclear Verdicts, 2010 – 2019
2010 2011 2012 2013 2014 2015 2016 2017 2018 2019
$10M or More $20M or More
Trend ($10M or More)
Trend ($20M or More)
Trend ($100M or More)
$100M or More
0
20
40
60
80
100
120
140
160
180
“ While there is year-to-year variation, the data shows
an upward trend in the frequency of reported nuclear
verdicts in personal injury and wrongful death cases
over the ten-year study period.”
11 | U.S. Chamber of Commerce Institute for Legal Reform
Chapter 02
reported nuclear verdicts
period did not include a
of most nuclear verdicts”
because “[t]he plaintiffs’ bar
knows how to successfully
7
Jury verdict reports
do not consistently or
uniformly break down
between economic and
and some cases involve
awards or compare the
proportion of economic
half of the reported nuclear
verdicts in the data set
types. This subset of data
indicates that economic
to cover medical expenses
for just 14% of the total
amount awarded in nuclear
study period. Noneconomic
total verdicts (42% and
44%, respectively). These
however, due to the
inclusion of billion-dollar
outliers, in six out of
ten years of the subset
data, the total amount of
awarded in nuclear
verdicts exceeded the
total amount of economic
Figure 4: Percentage of Nuclear Verdicts Including
a Punitive Damages Award, 2010 – 2019
2010 2011 2012 2013 2014 2015 2016 2017 2018 2019
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
observed, pain and
component of most
nuclear verdicts’
because ‘[t]he
plaintiffs’ bar knows
how to successfully
non-economic
U.S. Chamber of Commerce Institute for Legal Reform | 12
Chapter 02
State Courts Host Far
More Nuclear Verdicts
Than Federal Courts
Personal injury lawyers have
in state courts—which they
more plaintiff-friendly
rules—than more neutral,
federal courts with lifetime-
8
The data
supports that perception.
Nuclear verdicts were far
more frequent in state courts
than in federal courts. State
courts hosted nine out of
ten reported nuclear verdicts
in personal injury and
the ten-year study period.
Federal courts hosted
just 151 of 1,376 reported
nuclear verdicts (about
11%) and 12 of 101 reported
(12%). While this may, in
tort claims are decided in
state courts, federal courts
number of product liability
and other personal injury
cases in recent years.
9
“ ... [I]n six out of ten years of the
subset data, the total amount of
noneconomic damages awarded
in nuclear verdicts exceeded the
total amount of economic damages
and punitive damages combined.”
Chapter 02
13 | U.S. Chamber of Commerce Institute for Legal Reform
Chapter 02
03
Top States
for Nuclear
Verdicts
Chapter
U.S. Chamber of Commerce Institute for Legal Reform | 14
Chapter 03
Most nuclear verdicts—nearly three-quarters—are concentrated in ten
states. Most of these states produce the highest levels of nuclear verdicts
even when accounting for population dierences.
California and Florida
competed for the top spot,
followed by New York and
Texas. These four states
consistently produced the
most nuclear verdicts during
the ten-year study period.
Other states with courts that
are prone to nuclear verdicts
include Pennsylvania,
Illinois, and, especially in
more recent years, Georgia.
Rounding out the Top 10
jurisdictions for most nuclear
verdicts over the full ten-year
study period are New Jersey,
Washington, and Missouri.
Other states climbed into the
example, Louisiana ranked
seventh among the states
for the number of nuclear
verdicts in auto accident
cases over the ten-year
study period.
Looking at nuclear verdicts
on a “per capita” basis shows
that having more verdicts
is not simply a function
of having a larger state
population. Seven of the
Figure 5: Top 10 States by Cumulative
Nuclear Verdicts, 2010 – 2019
Table 2: Top 10 States by Per Capita
Nuclear Verdicts, 2010 – 2019
213
211
151
132
78
75
35
34
27
53
Missouri
New Jersey
Illinois
Pennsylvania
Texas
New York
California
Florida
State
Per
Capita
Rank
Cumulative
Rank
(From
Figure 5)
Average
State
Population
Nuclear
Verdicts
per 100K
People
Florida 1 1 20,109,631 1.059
New York 2 3 19,560,913 0.772
Pennsylvania 3 5 12,774,637 0.611
Illinois 4 6 12,822,325 0.585
California 5 2 38,618,190 0.546
Alabama 6 — 4,845,320 0.537
New Mexico 7 — 2,087,643 0.527
8 7 10,147,472 0.522
9 — 57 7,786 0.519
Texas 10 4 27,172,097 0.486
15 | U.S. Chamber of Commerce Institute for Legal Reform
Chapter 03
Top 10 states with the most
cumulative nuclear verdicts
also ranked in the Top 10
in terms of nuclear verdicts
per capita. This per capita
ranking considers the number
of nuclear verdicts based on
the average population of
each state during the ten-year
study period, according to
U.S. Census Bureau data.
10
Florida topped both Top 10
lists. The Sunshine State
not only produced the most
nuclear verdicts during
the ten-year study period,
it hosted far more with
respect to its population
than any other jurisdiction.
In addition, California’s high
total of nuclear verdicts is
not simply attributable to
being the most populous
state; California still ranked
population into account.
The per capita rankings for
New York, Pennsylvania,
Illinois, and Georgia also
closely tracked each state’s
ranking on the Top 10 list
of most nuclear verdicts.
Texas ranked tenth on
the per capita list while
producing the fourth
most nuclear verdicts
cumulatively. Washington
and Missouri fall just outside
the Top 10 per capita list
and are eclipsed by New
Mexico and Wyoming, low
population states in which
a few nuclear verdicts
produced a comparatively
high per capita ratio.
Each state that is a hot
spot for nuclear verdicts
has its own unique mix of
contribute to the frequency
of these extraordinary
awards. The discussion
below takes a closer look
at the seven states that
appear on both Top 10 lists.
Florida
213 Reported Nuclear
Verdicts | $35B Awarded |
Median $20M
Florida narrowly surpassed
California for the most
nuclear verdicts over the full
number of nuclear verdicts in
Florida decreased between
2015 and 2017 and remained
That Florida rivals California
for the most nuclear
that Florida’s population
the study period, Florida
hosted, by far, the most
nuclear verdicts per capita.
Nearly two-thirds of Florida’s
nuclear verdicts in personal
cases were reached in
product liability (38.5%)
than the proportion of
from product liability cases
nationally (23.6%) and
accident cases (22.8%)
overall. In the most recent
three years of data, the
share of reported nuclear
auto accident lawsuits in
Florida climbed to 32%.
Florida is also more prone
than other states. Forty
percent of nuclear verdicts
in Florida included a
Chapter 03
Seven of the Top 10 states with the most cumulative
nuclear verdicts also ranked in the Top 10 in terms of
nuclear verdicts per capita.
U.S. Chamber of Commerce Institute for Legal Reform | 16
Chapter 03
compared to 26% nationally.
This mix of cases and award
11
as well as the
state’s personal injury bar
in auto accident cases.
This trend continues, with
in October 2020
12
and $1
13
While nuclear verdicts
were reported across the
state, Broward County
and Miami-Dade County
were the most frequent
areas for such awards.
California
211 Reported Nuclear
Verdicts | $9B Awarded |
Median $21M
California hosted the most
reported nuclear verdicts
between 2014 and 2019,
and, as noted, competed
with Florida for the top
spot across the ten-year
study period. The number of
nuclear verdicts in California
from the state’s size but is
also driven by its liability-
friendly laws and courts.
As indicated above,
nuclear verdicts per capita.
Similar to Florida,
two-thirds of California’s
nuclear verdicts came in
product liability and auto
are reversed. In California,
auto accident cases had
the lead share of nuclear
verdicts (32.7%), while
product liability came next
(25%). California’s nuclear
verdicts in product liability
cases include a score of
asbestos claims, a trend that
restarted in California as
COVID-19 pandemic.
14
They
also include several massive
manufacturers failed to warn
that use of talcum powder
and weed-killer products
nuclear verdicts were a
$417 million award in a
talc case that was later
overturned
15
and a $2 billion
later reduced to $87 million.
16
In one area, California is
far less prone to nuclear
verdicts than other states.
Only 7.6% of California’s
ten-year study period were
reached in medical liability
claims (compared to 20.6%
healthcare liability actions
“ Florida is also more
prone to punitive
damage awards than
other states. Forty
percent of nuclear
verdicts in Florida
included a punitive
damage element
compared to
26% nationally.”
“ Recent experience suggests ‘nuclear punitives’
are becoming more common in California, which,
unlike many other states, has no limit on them.”
17 | U.S. Chamber of Commerce Institute for Legal Reform
Chapter 03
provides stability in awards
and facilitates settlements.
About 22% of California’s
nuclear verdicts across the
ten-year period included
consistent with the national
experience. However, this
level jumped to 32% in the
period. Recent experience
in California, which, unlike
many other states, has no
limit on them.
17
While nuclear verdicts
occurred across California,
up more than one-third of
the verdicts over $10 million.
New York
151 Reported Nuclear
Verdicts | $5B Awarded |
Median $19M
Unlike other states, New
York’s nuclear verdicts
are heavily concentrated
in premises liability
(29.8%) and medical
liability (22.5%) trials,
with auto accident cases
New York’s premises liability
verdicts is the state’s unique
19th century “Scaffold
Law,” which subjects
employers to strict liability
in the tort system for falls
at construction sites, rather
workers’ compensation.
For instance, a New York
City jury returned a $102
$85.75 million for pain and
worker injured after he fell
from a booth that was hit by
a forklift driven by another
worker.
18
New York also
has had nuclear verdicts
failed to provide adequate
security on their premises.
19
Medical liability cases
resulted in several New
$100 million. Some of
these verdicts are primarily
20
While product liability cases
make up a smaller share of
nuclear verdicts in New York
than nationwide (14.5% in
New York compared to 23.6%
nationally), those awards
include more than a dozen
million and several for $60
study period was
21
Nuclear verdicts in New
York are less likely to
than in other states. Just
6.6% of nuclear verdicts in
New York over the ten-year
study period included a
New York does not have a
statutory cap on punitive
traditionally allowed them
malicious or the most
irresponsible conduct.
Instead, New York personal
to return extraordinary
tactics contribute to
excessive awards in the
Empire State. A study of
U.S. Chamber of Commerce Institute for Legal Reform | 18
Chapter 03
documented 34 nuclear
in which plaintiffs’ lawyers
asked juries to return
and $140 million.
22
In some
cases, juries returned the
exact amount requested or
“compromised” with a
still-extraordinary verdict
by the amount the lawyer
These awards are often
appeal,
23
however, New
York’s appellate division
has repeatedly declined to
consider whether plaintiffs’
at levels state courts
have never sustained as
“reasonable compensation”
in comparable cases.
24
For many years, New
York appellate courts had
maintained a de facto $10
million limit on noneconomic
catastrophic of injuries. They
to review whether an award
is excessive because it
“deviates materially from
what would be reasonable
compensation.”
25
This law
allows New York courts to
objectively compare the
amount of prior awards
sustained on appeal
similar injuries when
verdict, rather than apply
“shocks the conscience”
approach. Several recent
verdicts, however, have
that the $10 million limit “is
kaput.”
26
As a result, nuclear
verdicts and settlements are
even more likely in New York.
Nuclear verdicts in
New York are most common
County (Brooklyn), and
Bronx County.
Texas
132 Reported Nuclear
Verdicts | $7B Awarded |
Median $21M
In Texas, nuclear verdicts
accident claims, which
make up 32.6% of verdicts
over $10 million over the
ten-year period compared
to 22.8% nationwide. Texas
is particularly known for
27
In some of these cases,
liability appears to be more
about who is perceived as
than about who was
actually responsible for
the accident. For example,
a 2014 accident led to a
nearly $90 million verdict
in a case in which an out-
of-control pickup truck
“ A signicant
contributor to New
York’s premises
liability verdicts is
the state’s unique
19th century ‘Scaffold
Law,’ which subjects
employers to strict
liability in the tort
system for falls
at construction
sites, rather than
compensating those
who are injured
through workers’
compensation.”
19 | U.S. Chamber of Commerce Institute for Legal Reform
Chapter 03
and spun into the path
a winter storm. In the
2018 Houston trial, the
plaintiffs’ lawyer blamed
to take an alternative route,
drive slower, or pull off the
conditions.
28
Another Texas
a $260 million verdict that
year, all of it noneconomic
the parents of a driver
who died after he hit a
tractor-trailer as it pulled
out of a driveway into a
29
These types
of extraordinary verdicts
have continued in Texas
with a $730 million award
and $250 million in
who had a collision with
a navy submarine.
30
Product and premises
liability claims each make
up about 21% of the Lone
Star State’s nuclear verdict
total, while medical liability
claims come in a distant
6.8%, far below the national
providers may help avoid
nuclear verdicts in
that area.
31
On the other hand, despite
statutory limit on punitive
nuclear verdicts included
Texas law, after the trial,
the court will reduce an
extraordinary punitive
more than the amount of
two times the amount of
32
Such post-trial reductions
Harris County (the Houston
area) and Dallas County
are the most prevalent
jurisdictions for nuclear
verdicts in Texas.
Chapter 03
“ Texas is particularly known for nuclear verdicts against
the trucking industry. In some of these cases, liability
appears to be more about who is perceived as able to
pay an astounding gure for a tragic injury than about
who was actually responsible for the accident.”
U.S. Chamber of Commerce Institute for Legal Reform | 20
Chapter 03
Pennsylvania
78 Reported Nuclear
Verdicts | $11B Awarded |
Median $20M
Pennsylvania’s nuclear
product liability (30.8%) and
medical liability (also 30.8%)
actions, areas in which the
friendly reputation. Auto
accident cases followed
at a distant third (15.4%).
The Philadelphia Court of
Common Pleas Complex
has served as a hub for
pharmaceutical and medical
device manufacturers from
across the state and the
country. For example, the
CLC hosted a series of seven
pelvic mesh manufacturers
between 2015 and 2019,
$120 million, $80 million,
and $57.1 million. It also
maintains a docket of
that a pharmaceutical
manufacturer failed to
could develop breasts. One
of those cases resulted in an
verdict in October 2019
(which was later slashed
33
Another
Philadelphia-tried Risperdal
case resulted in a $70 million
verdict in 2016, which
was upheld on appeal.
34
More than half of
Pennsylvania’s nuclear
verdicts are reached in
the Philadelphia Court
of Common Pleas. The
remainder are dispersed
Illinois
75 Reported Nuclear
Verdicts | $3B Awarded |
Median $20M
In Illinois, nuclear verdicts
in personal injury and
frequently stemmed from
medical liability trials (37.3%),
which were nearly twice as
common as the national
year study period. The next
two most frequent areas for
nuclear verdicts in Illinois
combined did not reach this
proportion—product liability
(17.3%) and premises liability
(16%). Auto accidents made
up just 10.7% of nuclear
verdicts in personal injury
in Illinois compared to
22.8% nationwide.
Aside from their frequency
in medical liability cases,
nuclear verdicts in Illinois
cases. Two of Illinois’
ten-year study period were
in federal multidistrict
men experienced heart
“ In Illinois, nuclear
verdicts in personal
death cases most
frequently stemmed
from medical liability
trials (37.3%), which
were nearly twice
as common as the
national experience
study period.”
21 | U.S. Chamber of Commerce Institute for Legal Reform
Chapter 03
AndroGel. The trial court
it was inconsistent for
plaintiff’s heart attack and
award no compensatory
35
The trial court
tossed the second verdict,
$140.1 million, for similar
reasons.
36
court verdict, $148 million
2017 trial of a case in
which a woman was
injured when a bus shelter
she be awarded nearly
$175 million for pain,
costs.
37
The parties later
reportedly settled for
$115 million, rather than
full award was excessive.
38
What many of the cases
that result in nuclear
verdicts in Illinois have
in common is where they
were tried. Two-thirds of
nuclear verdicts in Illinois
resulted from trials in the
Cook County Circuit Court
of the state’s nuclear
verdicts were in federal
court, primarily in the
Northern District of Illinois,
such as the AndroGel
cases. The remainder
came from cases in other
state trial courts.
53 Reported Nuclear
Verdicts | $3B Awarded |
Median $21M
of nuclear verdicts that are
concentrated in premises
liability (26%), medical
liability (21%), and auto
accident (21%) trials. Most
of these verdicts occurred
between 2015 and 2019.
of the ten-year period,
these verdicts propelled
states for nuclear verdicts.
premises liability verdicts
stemmed from cases
responsible for a criminal
attack on or near its property
due to inadequate security.
These cases followed a 2017
be held liable for attacks
that are “foreseeable.”
39
The 2013 trial in that case
had resulted in a $35 million
for an attack by assailants
at a bus stop outside of
the amusement park. Later
examples include a $69.6
40
and a $43 million verdict
from a robbery attempt
41
liability verdicts included
$25 million to a disabled
woman who tripped when
42
and
$50 million in punitive
apartment complex accused
death due to substandard
43
experienced nuclear
U.S. Chamber of Commerce Institute for Legal Reform | 22
Chapter 03
Chapter 03
industry. For example, in
County jury returned a $280
45 minutes.
44
The plaintiffs
claimed the driver, who
swerved across the center
lane, fell asleep at the
wheel, while his employer
claimed the driver swerved
Whatever the cause, the
be viewed as extraordinary:
$150 million for economic
damages, $30 million for
Despite some of these
other states in that 19% of
reported nuclear verdicts
to 26% nationally.
to return any amount of
extraordinary.
45
tactics (discussed in
Chapter 4) have contributed
awards. For example,
plaintiff’s lawyer asked for
and the jury responded
with an $81 million award
(with just 14% of the fault
allocated to the attackers).
46
Similarly, in the CVS case,
the plaintiff’s lawyer asked
and the jury returned a
$45 million award (with
5% of the fault allocated
to the plaintiff).
47
Such
that the jurors relied upon
extraordinary anchors even
have continued beyond the
2022, a Gwinnett County
jury reached a $1.7 billion
pickup truck rollover case,
48
came from across the
and DeKalb counties
“ During the nal two years of the ten-year
period, these verdicts propelled Georgia into
the top ve states for nuclear verdicts.”
23 | U.S. Chamber of Commerce Institute for Legal Reform
Chapter 03
04
Fueling
Nuclear
Verdicts
Chapter
U.S. Chamber of Commerce Institute for Legal Reform | 24
Chapter 04
Numerous factors contribute to a nuclear verdict. Plaintis’ lawyers use
tactics to manipulate juror behavior and arbitrarily inate damages.
Lawsuit advertising touts verdicts that may not stand, distorting potential
jurors’ views of appropriate compensation. And third party litigation
funders can change litigation dynamics and drive up award demands.
Reptile Tactics
Plaintiffs’ lawyers have
with the “reptile theory” to
manipulate jurors to reach
decisions on liability and
for themselves or others,
rather than based on the
evidence presented at
trial.
49
The idea behind this
feel threatened, so they
lash out at their perceived
attackers. The tactic aims
that unless they render a
verdict that exceeds actual
punishes the defendant,
to the community and
and themselves.
jurors to use their “reptile
coauthored by a trial lawyer
and a jury consultant
called, “Reptile: The 2009
Manual of the Plaintiff’s
Revolution.”
50
been debunked, the tactic
can be very persuasive in
the courtroom because it
diverts jurors’ attention
away from facts and
evidence needed to
evaluate whether a
defendant is responsible
for a plaintiff’s injury and,
if so, an amount that is
reasonable compensation.
Instead, plaintiffs’ lawyers
make them feel their
purpose is to protect
51
This approach is essentially
a substitute for so-called
that jurors put themselves
in an injured plaintiff’s
shoes, which courts have
widely held improper.
52
Nevertheless, many courts
still allow plaintiffs’ lawyers
produce nuclear verdicts.
A related tactic is to
focus the jury on some
“ ... [Reptile tactics] can
be very persuasive in
the courtroom because
[they] divert[] jurors’
attention away from facts
and evidence needed
to evaluate whether a
defendant is responsible
for a plainti’s injury
and, if so, an amount
that is reasonable
compensation.”
25 | U.S. Chamber of Commerce Institute for Legal Reform
Chapter 04
elements of a claim, such
a defendant breached a
a product is defective,
or that the defendant’s
conduct or the product
caused the plaintiff’s injury.
Plaintiffs’ lawyers may
refer to nebulous “safety
rules” and the overall
importance of safety to a
company to divert the jury’s
standard and stoke juror
53
They
may, for instance, trick a
corporate representative
a top concern?” and use
question to remind the
jury at every turn that
the company fell short
purportedly set. Such
tactics can sidestep a
defendants in jurors’ minds,
retributive behavior, all
of which can contribute
to nuclear verdicts.
The Rise in
Noneconomic
Many nuclear verdicts are
comprised primarily of an
award of noneconomic
Plaintiffs’ lawyers’ ability
to manipulate juror
determinations of this
inherently subjective
led to a transformative
increase in these
awards. Historically,
awards were modest
and rarely exceeded a
claimant’s economic
An empirical study of tort
cases between 1800 and
1900 found only two trials
in current dollars.
54
No court permitted an
award of noneconomic
anywhere near this level.
the 1950s as plaintiffs’
awards and, by the 1970s,
55
The
to have experienced
past two decades, after
the U.S. Supreme Court
“ Plaintiffs’ lawyers’ ability to manipulate
juror determinations of [noneconomic
damages] has led to a transformative
increase in these awards.”
awards appears to
have experienced
over the past two
decades, after the
U.S. Supreme Court
intervened to address
a trend of punitive
Chapter 04
U.S. Chamber of Commerce Institute for Legal Reform | 26
Chapter 04
intervened to address
a trend of punitive
56
In a series of decisions,
the Supreme Court
adopted constitutional
constraints on punitive
57
Perhaps
Court indicated that
punitive and compensatory
process” and that, in
amounts of compensatory
“can reach the outermost
limit of the due process
58
Meanwhile,
states adopted judicial
bifurcation of liability and
awards became more prone
to remittitur by trial courts
and reversal on appeal.
For that reason, crafty
personal injury lawyers
looked to other avenues
awards and other forms
provided an easy choice.
are typically subject to
imprecise and ineffective
standards of review, such
as whether the amount
the conscience” of the
court or is clearly a result
of passion and prejudice.
And, while about half
of states have statutory
limits on noneconomic or
liability actions, only nine
states have laws that
extend such limits to other
personal injury cases.
59
some plaintiffs’ lawyers
awards, which are intended
solely to compensate a
plaintiff for an injury, to
punish a defendant.
60
Personal injury lawyers
sums. In most states, they
and often extraordinary,
yet can have a profound
impact on jurors.
61
The
“anchor” proposed by
the plaintiffs’ lawyer
powerful baseline for jurors
“ The ‘anchor’ proposed
by the plaintis’ lawyer
creates a psychologically
powerful baseline for
jurors struggling with
assigning a monetary
value to dicult-to-
dene damages such
as pain and suering.”
27 | U.S. Chamber of Commerce Institute for Legal Reform
Chapter 04
62
Once
a plaintiffs’ lawyer drops
the anchor, jurors often
amount or “compromise”
or downward.
63
While
because these awards are
dollar amount.
64
amount (a “lump sum”).
amounts more palatable,”
plaintiff’s compensation at
a set amount per day, week,
month, or year, and then
multiply that amount by the
in the plaintiff’s life
expectancy” (referred to as
65
In some cases, the lawyer
links the proposed amount
or formula to some other
aspect of the case, however
irrelevant to the claimant’s
66
This
may be the amount the
defendant compensated its
CEO
67
or its trial experts.
68
Whatever the approach, the
reach a multi-million dollar
Empirical evidence has
repeatedly demonstrated
that “the more you ask
69
Whether it is an automobile
liability trial, studies
have found that jurors
presented with an anchor
return verdicts that are
they would have returned
when left to decide a
reasonable amount of
70
Plaintiffs’ lawyers are well
aware of the effectiveness
of this tactic.
71
year study period include:
• In a California case
commonly used
weed killer Roundup
caused the plaintiff to
lymphoma, the plaintiff’s
lawyers asked the jury
to award “a million
dollars per year” for their
client’s past and future
the remainder of his
expected life, a total
of $37 million. The
jury awarded precisely
this sum, in addition
to about $2 million in
and $250 million in
72
• In a New York case in
which a construction
up a concert venue,
the plaintiff’s lawyer
requested $35 million for
his client’s past pain and
for future pain and
awarded $85.75 million in
73
Even after the trial court
and an appellate court
reduced the amount, the
a New York record.
74
U.S. Chamber of Commerce Institute for Legal Reform | 28
Chapter 04
•
company conceded
liability prior to trial for a
tractor-trailer accident,
the plaintiff’s lawyer
asked the jury to award
$200 million for the
value of the deceased
plaintiff’s life plus
attorney’s fees. The jury
awarded $150 million for
the value of the plaintiff’s
life, $30 million for
and $100 million in
75
Defense counsel are
often reluctant to offer a
counter-anchor because
money that the jury should
award could be viewed as
a concession of liability
and the effectiveness of
is uncertain.
76
Even if a
defendant counters an
“the plaintiff’s counsel
hopes that jurors will split
the difference between
the two numbers, which
still allows a nuclear
verdict to occur.”
77
Only about one-third of
states prohibit or limit
the use of “lump sum”
States have limited
78
These courts provide
plaintiff’s counsel for a pain
based on evidence,
79
and,
just as expert witnesses
are not permitted to
testify on the value of pain
cannot do so.
80
Courts
have found that per diem
calculations in particular
create “an illusion of
certainty”
81
or “can result
in any amount that the
82
And many courts that allow
issue in decades, even as
plaintiffs’ lawyers have
Public and Jury
Pool With Ads
Verdicts
The public has become
advertisements on
television and social media
for plaintiffs to receive
verdicts and settlements
in the hundreds of millions
or billions of dollars. The
amounts advertised often
that do not disclose that
trial courts promptly
slashed these amounts or
that the awards are likely
“ The amounts advertised often are misleading
because they ash nuclear verdicts that do not
disclose that trial courts promptly slashed
these amounts or that the awards are likely
to be further reduced or overturned on appeal.”
29 | U.S. Chamber of Commerce Institute for Legal Reform
Chapter 04
to be further reduced or
overturned on appeal.
For example, consider
lawsuit advertisements
the commonly used weed
killer Roundup causes non-
trial that led to a $2 billion
verdict, defense lawyers
expressed concern that
plaintiffs’ lawyers had
“bombarded” the jury pool
with television and radio
ads in the local media.
The most widely aired
local TV ad, which ran an
up to trial, touted a recent
award of “nearly $300
million” in a prior Roundup
case.
83
In the three months
verdict, plaintiffs’ lawyers
about 160,000 television
ads nationwide at an
estimated cost of $50
million.
84
Courts lowered
the $2 billion verdict to $87
million (, May 2019),
the $80 million verdict to
$25 million (,
March 2019), and the
$289 million verdict to $78
million (
2018)—a combined total
reduction of 92% from the
A more recent example is
a nuclear verdict in the
Join the Many TV Spot, “Roundup.” Source: iSpot.tv.
Aired Apr. 11, 2022 to July 10, 2022.
Miller & Zois Attorneys at Law, “$110 Million Verdict
Posted Jan. 28, 2022.
Arnold & Itkin LLP TV Spot, “Ovarian Cancer Linked
to Talcum Powder.” Source: iSpot.tv. Aired June 1,
2020 to Dec. 21, 2020.
Goldwater Law Firm TV Spot, “Xarelto and Pradaxa
Aired Oct. 5, 2015 to Mar. 4, 2016.
U.S. Chamber of Commerce Institute for Legal Reform | 30
Chapter 04
case, the manufacturer’s
attorneys indicated that,
local Florida community
a $110 million verdict
($55 million for each of
two plaintiffs). The
subsequent trial resulted
in an unprecedented $50
million compensatory
that the plaintiff had
only mild and treatable
reduction in the verdict or
retrial, say that the lawsuit
ads, and the plaintiff’s
the earlier case by name
nuclear verdict.
85
Several
MDL have resulted in
either defense verdicts or
relatively modest awards.
86
investments of hundreds
of millions of dollars in
hundreds of thousands
87
These
“ These ad campaigns are
built strategically around the
lifecycle of a litigation, peaking
at opportune times to maximize
the investment.”
Chapter 04
31 | U.S. Chamber of Commerce Institute for Legal Reform
Chapter 04
times to maximize
the investment.
88
verdicts may also continue
to run or be available
online even after the court
the award or required a
new trial. Lawsuit ads
also emphasize mass tort
settlements, which may be
relatively small amounts
per individual plaintiff.
In addition, plaintiffs’
lawyers issue press releases
which are often picked up by
the media. The public is less
likely to learn the ultimate
outcome of these cases
after post-trial motions and
followed for a substantially
lower amount. In sum, the
of nuclear verdicts is
to astronomical amounts.
This may lead jurors to
believe that awards at
these levels are normal and
are not. This continues
a cycle of unreasonable
unsustainable nuclear
verdicts, post-trial motions
and reductions, and appeals.
The Rise of Third
One reason some plaintiffs’
other companies dedicated
underwrite individual cases
and portfolios of cases,
expectation that they will
obtain a substantial return
on that investment.
89
While lawsuit investors
under a veil of secrecy,”
their business model
has become harder to
hide because third party
has transformed into
a multi-billion dollar
industry.
90
The industry has
become so lucrative, and
91
Re Institute study, an
estimated $17 billion
with more than half
that amount directed at
States.
92
TPLF investments
also increased 16%
between 2020 and 2021
alone and are projected
to balloon to $31 billion
annually by 2028.
In addition, the study found
that “TPLF contributes
expenses.”
93
The practice
accept to settle his or her
must be shared with the
U.S. Chamber of Commerce Institute for Legal Reform | 32
Chapter 04
funder. Plaintiffs may be
settlement and instead opt
to proceed with a jury trial
who as a practical matter
behind the scenes, may
also push to hold out for
maximize their own return.
funders’ objective is to
not act in the interest of
in the best interests of the
individual whose claim
case can reasonably be
settled, they nevertheless
may pressure plaintiffs to
possible return, even if it
increases the likelihood
that the plaintiff will
TPLF may also result in
speculative lawsuits that
enormous sums may prove
in a nuclear verdict.
“ Funders recognize
that bankrolling
numerous longshot
lawsuits seeking
enormous sums may
prove a successful
strategy even if only
a single case results
in a nuclear verdict.”
33 | U.S. Chamber of Commerce Institute for Legal Reform
Chapter 04
05
Real World
Implications
Chapter
Chapter 05
Increases in the frequency and amount of nuclear verdicts adversely
aect society in many ways. They can drive up the costs of goods and
services, create insurability problems, inhibit job growth and new
investments for businesses or industries, deplete judicial resources,
and—perhaps most signicantly—undermine condence in the rule of law.
A jury verdict in a personal
action that awards tens
or hundreds of millions of
or other civil defendant
implications. For relatively
small businesses, the
verdict may threaten the
viability of the business,
and with it the jobs of its
employees and potentially
others in a community
whose livelihoods are
connected to the business.
A massive verdict can also
months or years before it
is reduced on appeal or
settled for a substantially
and other investments
that build the business.
nuclear verdict can disrupt
an entire industry or sector
of the economy in addition
to the adverse impacts
on the business itself.
For example, the multiple
the weed killer Roundup
(discussed in Chapter
4), which included a $2
billion verdict, affected the
continued production and
chemical” in America.
94
The
product plays an invaluable
population increases
the demand for food.
95
Nuclear verdicts can also
cause a host of other
problems that reverberate
and Insurability
Problems
it more costly to make
a product or service
available to consumers.
The outlier nature of a
nuclear verdict can impose
substantial added costs in
an unpredictable manner
that is unrelated to market
forces such as the cost of
a product’s raw materials
or labor for a service. As
a result, consumers may
and increased volatility
as opposed to what they
reasonably expect to pay for
everyday items and services.
This unpredictability
also creates insurability
problems. Insurers
underwrite policies
based on expected costs
Nuclear verdicts introduce
unexpected costs that
may dramatically exceed
reasonable compensation
for an injury. This may
some individuals or entities
out of the insurance market
types of insurance so risky
and unpredictable that
insurers back away from
which is essential to the
availability of countless
of how nuclear verdicts
can overwhelm an industry
and cause insurability
problems. A 2020 study by
the American Transportation
Research Institute of
accident cases reported
frequency and amount of
multi-million dollar verdicts
from 2005 to 2019.
96
It
explained that nuclear
verdicts have contributed
to dramatic increases in
insurance costs for all motor
carriers, which have caused
a number of motor carriers
97
The
insurance costs into the
transportation rates they
the supply chain, which are
98
adversely affect the costs
and insurability of other
essential services such as
the provision of health care.
The Medical Professional
Liability Association, for
instance, found that the
number of multi-million
dollar awards in medical
malpractice cases has been
by 50% between 2016
and 2019 alone.
99
These
upheld, are incorporated
premiums for doctors and
other medical professionals,
amounts for their services.
The combination of ever-
due to other factors
100
can push the health care
point. It can exacerbate
patients in some areas
(particularly rural areas)
without adequate health
care options or access to
certain medical specialists.
101
Greater frequency and
amounts of nuclear verdicts
can also more acutely
affect costs and insurance
example, New York has
of construction projects
insurance market “crisis” due
to nuclear verdicts awarded
under the state’s Scaffold
Law (discussed in Chapter
3).
102
New York is home to
insurance costs, and this law
costs of every construction
Chapter 05
“ The reality is that [nuclear verdicts] permeate
innumerable aspects of every American’s daily
life. They increase the costs of food, housing,
health care, and other valued goods and services,
as well as insurance for things such as a car,
home, or other property.”
project in the state. Several
estimates conclude the
law approximately doubles
insurance costs without
103
Most insurers will not
underwrite policies for New
York construction projects
at all, and those that do
often restrict or exclude
claims.
104
These added costs
and insurability problems
contribute to New York’s
as New York City.
These are only a few of
the ways nuclear verdicts
that these awards permeate
innumerable aspects of
every American’s daily life.
They increase the costs of
and services, as well as
as a car, home, or other
property. While some jurors
and members of the public
business, the reality is that
layers of costs to themselves
and their communities.
Nuclear verdicts often waste
the time and resources of
the judiciary as well as those
of plaintiffs and defendants.
jackpot nuclear verdict may
by his or her lawyer, to
reject reasonable settlement
and witnesses. If a jury
returns an extraordinary
amount, rather than end
case moves on to motions
for remittitur (to reduce the
verdict) or for a new trial.
A moderate reduction in
the award by the trial court
still nuclear, verdict will
typically be appealed by
a defendant. On the other
hand, a substantial reduction
of the award to a reasonable
level is likely to lead a
plaintiff’s lawyer to appeal.
Even if the case ultimately
reaches a reasonable
the parties will have spent
sums to arrive at this result
and the plaintiff may wait
result may also needlessly
resources (both trial
and appellate)—with a
concomitant effect on other
perhaps only to arrive at
a “reasonable” verdict
that could or should have
across the board for
parties and the judiciary.
Chapter 05
“ The trial court
reduced the
punitive award to
$6.8 million—a
more than 99.9%
reduction—in 2020,
appeal until the case
was settled out of
Chapter 05
For example, in one of the
the ten-year study period
(discussed in Chapter 3), a
Philadelphia jury awarded
$8 billion to a plaintiff who
caused him to develop
The plaintiff commenced the
action in 2013 and obtained
a $1.75 million compensatory
which was reduced to
$680,000 in 2016. He then
obtained an $8 billion
in 2019.
105
The trial court
reduced the punitive award
to $6.8 million—a more than
99.9% reduction—in 2020,
until the case was settled
106
Had the
case not settled, it would
than a decade with multiple
Another example of a top
study period did involve
to the U.S. Supreme Court.
commenced an action in
injuries from talcum powder
products, which resulted
in a $4.14 billion verdict
in 2018.
107
The defendants
appealed and, in 2020, a
mid-level appellate court
reduced the award to around
$2.1 billion.
108
An appeal
to the Missouri Supreme
Court followed, and after
the court denied review,
the U.S. Supreme Court’s
review. The Court denied
Thus, three years passed
between the jury’s nuclear
award (which was nearly
the Missouri Supreme
Court and U.S. Supreme
Court never reviewed
the merits of the case.
Unreasonable
Demands
The prospect of a nuclear
verdict may incentivize
plaintiffs’ lawyers to make
unreasonable settlement
demands. After all, if
plaintiffs’ lawyers feel
a jury to return a verdict
of hundreds of millions
of dollars in a case,
109
it is
not a stretch to demand
similarly exorbitant
amounts from a defendant
outside of public view.
lawyers on both sides will
consider verdicts in cases
and comparable plaintiffs.
A personal injury lawyer
is likely to use nuclear
verdicts to seek amounts
that are beyond levels
that reasonably and fairly
compensate a client for
his or her injury. When
defendants must factor in
“ When evaluating [lawsuit] demands, defendants must
factor in the rising risk of a nuclear verdict, even if it has
strong defenses to the suit. As a result, nuclear verdicts
can lead to a spiral of inated ‘nuclear settlements,’
which are typically condential and unreported.”
Chapter 05
defenses to the suit. As a
result, nuclear verdicts can
“nuclear settlements,” which
and unreported. These
nuclear verdicts, can
services, and insurance.
In addition, situations
arise in which the parties
cannot resolve their claims
outside of a courtroom
in expectations. Greater
frequency and amounts
of nuclear verdicts can
widen this expectations
between what actually
compensates a party for
an injury and what amount
of recovery a plaintiffs’
lawyer may nonetheless
believe is attainable with an
impressionable jury. Parties,
therefore, may be more likely
past would have settled for
a reasonable amount. This
can strain judicial resources,
which are already stretched
thin in many jurisdictions,
and perpetuate a cycle in
which plaintiffs’ lawyers
in the Rule of Law
When nuclear verdicts are
permitted to stand, such
as when appellate courts
decline discretionary review,
it can understandably shake
of a stable and just
society is that the law is
applied even-handedly.
defendants to liability,
in a fair, consistent, and
predictable manner.
When a defendant is made
to pay radically different
sums to compensate
individuals for the same
or a substantially similar
injury, it undermines the
rule of law. There is no
rational explanation for
why a claimant should be
permitted to recover $100
million in compensatory
for an injury while a claimant
with the same injury is
fairly compensated by a
$1 million jury award in
another jurisdiction. The
a lottery to dole out jackpot
awards, yet nuclear verdicts
push it in that direction.
fairness and predictability
in the rule of law may sound
abstract, but it has very real
societal implications. People
start businesses, invest
endeavor to enter markets
in the United States based
on a fundamental belief
system. For example, 89%
of respondents of the latest
is likely to impact important
business decisions,
or to do business.
110
When
the incentives shift to do
business elsewhere.
“ When damage
awards increasingly
display signs of
lawlessness, the
incentives shift to do
business elsewhere.”
Chapter 05
39 | U.S. Chamber of Commerce Institute for Legal Reform
06
Solutions
Chapter
Chapter 06
U.S. Chamber of Commerce Institute for Legal Reform | 40
The factors that fuel rising nuclear verdicts provide a blueprint for
reforms. Legislators can take a variety of actions to prevent inated
awards before they occur and to respond to nuclear verdicts that occur in
spite of safeguards. No single reform will stop all nuclear verdicts, but a
comprehensive approach that addresses core causes of nuclear verdicts
can mitigate the trends seen during the ten-year study period.
Adopt Pre- and
Post-Nuclear
Verdict Civil
Justice Reforms
There are many ways to curb
nuclear verdicts, both before
adoption of traditional civil
justice reforms.
111
Below are
can help.
Evidence Management
fairness and predictability
before a nuclear verdict is to
ensure jurors hear evidence
at an appropriate time, not
when it is likely to lead to
an unjust result. In this
laws to facilitate jurors
considering potentially
Several states have adopted
laws to require a trial court,
upon request, to bifurcate
a jury’s consideration of
compensatory and punitive
help ensure that evidence
does not improperly lead
liable when it did not cause a
a compensatory award
to punish a defendant.
112
For example, in 2021,
Texas adopted a law in
commercial motor vehicle
for bifurcated trials so that
liability and compensatory
separate phase before any
potential jury consideration
113
codify the separation of
the presentation of evidence
to a jury. For example,
that prohibits a jury from
offered for the purpose
114
can adopt laws to
facilitate jurors
considering
potentially
evidence only in
Chapter 06
41 | U.S. Chamber of Commerce Institute for Legal Reform
Venue Reform
Another approach to curb
nuclear verdicts before they
occur is to ensure cases
are heard in an appropriate
venue, not simply steered
by plaintiffs’ lawyers to
a forum more prone to
nuclear verdicts. Venue
nuclear verdicts because
connection to a case may
believe they can award
their community.
Damages Guardrails
laws that respond to nuclear
verdicts. For example,
states have adopted limits
awards to provide that
some amount of subjective
reality of a serious injury.
115
Similarly, some states place
statutory limits on punitive
amount or a multiple of
that some amount of
punishment of a defendant
adequately deters future
misconduct.
116
Because
subjective noneconomic
verdicts, these civil justice
backstop that promotes
ultimately awarded.
can adopt other reforms
that help curb unsound
nuclear verdicts, such as
imposition of punitive
conduct.
117
Such laws can
prevent duplicative nuclear
verdicts comprised mainly of
liability or other cases.
118
of repose or some other time
horizon on the imposition
ensure that such awards still
make sense in a case. There
comes a point in time when
advance the objectives of
punishment and deterrence
because the nature of
the defendant’s business,
resembles the entity that
represent an exceptional
remedy, which if included as
serve its intended purpose.
Address
companies inundate the
that touts nuclear verdicts,
even where those verdicts
are substantially reduced,
overturned by an appellate
court, or later settled for a
substantially lower amount.
“ ... [L]egislators can
adopt other reforms
that help curb unsound
nuclear verdicts, such
as by prohibiting the
multiple imposition of
punitive damages for
the same conduct.”
Chapter 06
Chapter 06
U.S. Chamber of Commerce Institute for Legal Reform | 42
distorted picture of the civil
justice system and what
constitutes fair compensation
nuclear verdicts can also
the use of a product, such as
an FDA-approved prescription
physical injuries to the tune of
many millions of dollars. Such
to prompt individuals to stop
and even death.
119
both the adverse public
enacted in a number of states,
Tennessee, Texas, and
120
can focus on deceptive
about product safety, past
case results, depictions of
events, or any statements that
promise or imply a lawyer’s
ability to obtain results in a
matter.
121
only truthful and complete
information about product
safety risks and recovered
help protect the public and
recalibrate incorrect public
perceptions that contribute to
Promote Sound
Science in the
Courtroom
The most common types of
death cases that resulted
the ten-year study period,
namely product liability,
auto accident, and medical
liability cases (discussed
in Chapter 2), often involve
the admission of expert
cases turn on whether a
jury believes an expert with
respect to key issues such
as whether a product caused
a driver or doctor acted
when expert evidence is not
based on sound science or is
otherwise unreliable, it can
a nuclear verdict.
appropriate courts, can
standards so that jurors
only hear expert testimony
principles and methods
that the expert reliably
applies to the facts of the
case. In federal courts,
where nuclear verdicts
are far less common,
Federal Rule of Evidence
“ Legislation can focus on deceptive advertising
of nuclear verdicts by requiring clear
disclaimers about product safety, past
case results, depictions of events, or any
statements that promise or imply a lawyer’s
ability to obtain results in a matter.”
Chapter 06
43 | U.S. Chamber of Commerce Institute for Legal Reform
screen unreliable expert
evidence.
122
In 2022, the
federal Committee on Rules
of Practice and Procedure
approved amendments
which the rule has been
misapplied by courts.
123
The
testimony must establish
its admissibility to the court
by a preponderance of the
evidence before it can be
presented to a jury; and (2)
an expert must not assert a
opinion that is not derived
reliable methods.
124
States
their expert evidence
the amended federal rule
slated to take effect at
the end of 2023, and curb
nuclear verdicts based on
Adopt Third Party
Disclosure
The proliferation of TPLF
fuel nuclear verdicts by
demands provides another
can take action. A basic
problem with TPLF
with funders in secret.
Defendants, other parties,
and the court typically
do not know who may be
the scenes.
125
As discussed,
impact crucial issues
a case, such as whether a
plaintiff accepts or rejects a
reasonable settlement offer
and faces pressure to chase
a nuclear verdict.
can adopt TPLF disclosure
requirements to provide
Several states require,
parties to disclose any
126
By
also learn more about
dynamics and contribute to
nuclear verdicts.
Prohibit
Manipulation of
A clear way to prevent a
an arbitrary amount of
“ States should likewise
strengthen their
expert evidence rules,
such as by following
the amended federal
rule slated to take
effect at the end
of 2023, and curb
nuclear verdicts
based on misleading
and unreliable
scientic evidence.”
TPLF disclosure
requirements to
provide transparency
and the public.”
Chapter 06
U.S. Chamber of Commerce Institute for Legal Reform | 44
plaintiffs’ lawyer for pain
form of noneconomic loss
have discretion to bar or
a jury after-the-fact that
it should not consider a
calculation method because
does not adequately solve
the problem. As a practical
matter, it is virtually
impossible for a jury to
move on from a proposed
plaintiffs’ lawyer has
The better approach is for
baseless and manipulative
use in jury trials. This can be
no party or counsel may refer
jury an amount to award for
127
showed interest in
contribute to nuclear
introduced bills to prohibit
at least three states:
Oklahoma (where current
law is uncertain), Missouri
(which currently prohibits
mathematical formulas, but
allows plaintiffs’ lawyers to
(which currently prohibits
not require retrial).
128
Such
to decide on their own the
amount of noneconomic
should receive free from
drive a nuclear verdict.
“ The better approach is for state
legislators to take these baseless
and manipulative arguments
off the table for use in jury trials.”
Chapter 06
Chapter 06
45 | U.S. Chamber of Commerce Institute for Legal Reform
07
Conclusion
Chapter
U.S. Chamber of Commerce Institute for Legal Reform | 46
Chapter 07
This analysis of nuclear verdicts in personal injury and wrongful
death cases over a ten-year period between 2010 and 2019 conrms
what many civil defendants and others have long suspected: nuclear
verdicts are increasing in frequency and amount. The study also reveals
concentrations of nuclear verdicts and sheds light on the types of cases
and jurisdictions where nuclear verdicts are most prevalent. The question
moving forward is what can and should be done to address unsound
nuclear verdicts and promote greater fairness and predictability in
damage awards.
variety of measures that
sound civil justice reforms,
evidence standards,
each respond to different
factors that often combine
to produce extraordinary
and unsustainable awards.
cases and jurisdictions in
nuclear verdicts appear most
acute also helps inform the
nuclear verdicts over the
ten-year study period
accounted for nearly three-
fourths of the reported
nuclear verdicts, and that
many of these jurisdictions
concentrations of nuclear
verdicts on a per capita
basis, those jurisdictions
are prime candidates for
additional reforms.
The consequences of
continue to proliferate will be
society. Businesses will
lawsuit costs into their
products and services
insurability problems.
exacerbated by factors such
ads that reinforce distorted
views of product safety
and what is a reasonable
the while, individuals and
and predictable civil justice
system. These adverse
consequences are
reversible and now is
the time for action.
47 | U.S. Chamber of Commerce Institute for Legal Reform
Chapter 07
Methodology
U.S. Chamber of Commerce Institute for Legal Reform | 48
Chapter 07
The ndings presented in this paper are based on an Institute for Legal
Reform-developed database (ILR database) of 1,376 reported verdicts of
$10 million or more in personal injury and wrongful death cases during a
ten-year period between January 1, 2010, and December 31, 2019. The ILR
database does not include more recent data due to the COVID-19 pandemic,
which may be unrepresentative due to court shutdowns and trial delays.
The information in the ILR
the LexisNexis jury verdicts
and settlements database
(Lexis JV database). The
Lexis JV database includes
verdict reports collected
from federal and state
courts in every state.
The Lexis JV database
draws from 717 individual
proprietary and licensed
sources, such as ALM,
Dolan Media, Mealey
Publications, Matthew
Bender & Company, and
American Association for
Justice (AAJ) publications,
as well as LexisNexis’
content and media reports.
Lexis JV database reports
include a case summary;
identify the parties, injuries,
and dates involved; and
indicate the case resolution
(often, but not always,
broken down by types
sources used to develop the
ILR database likely capture
database captures all
verdicts in every court.
The ILR database does not
include nuclear verdicts in
areas outside of personal
employment, environmental,
or intellectual property
database is also limited to
nuclear verdicts—it does
not include individual
settlements, many of
and unreported, nor does
it include class action or
mass tort settlements.
the amounts awarded by
the jury. These amounts
by the trial court or on
appeal, such as a reduction
of the verdict as excessive
or the addition of pre-
Cases that involved multiple
based on the primary
theory of liability. For
the injury resulted from a
defect in the vehicle were
liability claims, even if they
49 | U.S. Chamber of Commerce Institute for Legal Reform
Chapter 07
Endnotes
U.S. Chamber of Commerce Institute for Legal Reform | 50
1
the end of this report.
2
Census Bureau data and annual estimates between 2010 and
2019.
2010-2019, U.S. Census Bureau.
3
U.S. Chamber Inst. for
4
See
American Transportation Research Inst. (June 2020);
, CNBC, Mar. 24,
5
For example, in, No.
2008-CA-000098 (Fla. Escambia County Cir. Ct., July 16, 2014),
the jury awarded a smoker $16.9 million in compensatory
See
Frances Robles,
, N.Y. Times, July 19, 2014. The court of appeals reversed,
admonishments.” , 216
So.3d 674 (Fla. 1st DCA, 2017). The retrial resulted in a defense
verdict in 2019. See Andrew Caplan,
, Gainesville Sun, June 25, 2019.
6
For example, in No.
6:12-cv-00064 (E.D. La. Apr. 7, 2014), the jury awarded
and reduced the award to $37 million. See Sindhu Sundar,
,
Law360, Oct. 27, 2014. The parties withdrew their appeals as
7
Michael Bradford,
Tyson, a partner at Tyson & Mendes).
8
59 F. Supp. 3d 1225, 1272 n.18
who are often elected, rather than appointed, and who often do
not have law clerks. They also prefer state juries, who are often
9
that diversity of citizenship cases rose 188.1% since 2012 and
10
U.S. Census Bureau.
11
decision, in 945 So. 2d 1246 (Fla.
claimants. As a result, thousands of individual cases have
proceeded in Florida trial courts, some of which have resulted in
nuclear verdicts. See Carolina Bolado,
, Law360, Mar. 17, 2006.
12
Cara Salvatore,
, No. 18000861 CAA (Fla.
Cir. Ct., Gadsden County Oct. 2, 2020). The entire verdict was for
13
Hailey Konnath,
No. 2018-CA-000148
14
Amanda Bronstad,
nationwide since courts reopened amid the COVID-19 pandemic).
15
Tina Bellon & Nate Raymond,
, Reuters, Oct. 20,
case). The award had included
.
16
Dorothy Atkins,
in , a state jury in San Francisco awarded
and a California federal jury handed down an $80 million verdict,
favor of Ed Hardeman in 2019.
17
Jonathan LaCour,
18
No. 158373/2013, 2020
WL 4258745, at *6-7 (N.Y. Sup. Ct. July 24, 2020), 193
A.D.3d 517 (2021).
19
, No. 101854/12, 2021,
2021 WL 96276 (N.Y. App. Div. Jan. 12, 2021).
20
, No. 310294/11, 2019 WL 6269086,
at *7-8, 119 N.Y.S.3d 705 (Table) (Sup. Ct. 2019), ,
51 | U.S. Chamber of Commerce Institute for Legal Reform
Cathy Burke,
Daily News, Apr. 13, 2019.
21
Jeff Sistrunk,
, Law360, July 24, 2013.
22
Timothy R. Capowski & Jonathan P. Shaub, Improper
,
N.Y.L.J., Apr. 28, 2020; Shaub Ahmuty Citrin & Spratt,
.
23
Christopher Simone, Jonathan Shaub & Molly Cohen,
, N.Y.L.J., Feb. 4, 2022.
24
193 A.D.3d
517, 518 (N.Y. App. Div. 2021) (“We decline the invitation of
190 A.D.3d 485, at 489 (N.Y. App. Div. 2021) (same);
195 A.D.3d 452, 453 (N.Y. App. Div. 2021)
25
N.Y. C.P.L.R. 5501(c).
26
Tom Stebbins, ,
Empire Rep., Feb. 1, 2021.
27
Keep Texas Trucking Coalition, Lawsuit Abuse and Its Impact on
the Transportation Industry, 2021.
28
David Earl,
, No. 14-18-00967-CV
29
, No. 16-00247, 2018 WL
7017862 (Tex. Dist. Ct. Nov. 16, 2018); Carola Salvatore,
, Law360,
Nov. 13, 2018). That case appears to have settled while on appeal.
, No. 06-19-00023-CV,
2019 WL 2273872 (Tex. Ct. App. May 29, 2019).
30
, Texarkana Gazette, Nov. 28, 2021.
31
and, in cases with multiple defendant institutions, $500,000 per
claimant);
32
Tex. Civ. Prac. & Rem. Code 41.008. The limit does not apply to
33
Jonathan Stempel,
, Reuters, Jan. 17, 2020.
34
Matt Fair,
, Law360, Sept. 1, 2020.
35
Lauraann Wood,
, No. 14-cv-01748 (N.D. Ill. Dec. 22, 2017).
36
Nate Raymond,
, Reuters, July 5, 2018.
37
Leah Hope & John Garcia,
38
39
, L.P., 801 S.E.2d 24 (Ga. 2017).
40
, Daily Rep., Apr. 19, 2019.
41
Daily Rep., Mar. 25, 2019.
42
Law360, Nov. 9, 2018 (reduced to $18.75 million to
43
, Law360, July 2, 2019.
44
Katheryn Hayes Tucker,
Meredith Hobbs,
, Law.com, Oct. 8, 2019.
45
46
, Daily Rep., Apr. 19, 2019.
47
Daily Rep., Mar. 25, 2019.
48
Rosie Manins,
49
Sonya Naar, et al.,
, Ass’n of Corporate
Counsel, Oct. 16, 2016.
50
Don Keenan & David Ball, Reptile: The 2009 Manual of the
Plaintiff’s Revolution (Balloon Press 2009).
51
Max Mitchell,
52
, Am. Bar
53
Tim Capowski et al.,
, N.Y.L.J., Mar. 4, 2022.
U.S. Chamber of Commerce Institute for Legal Reform | 52
54
Ronald J. Allen & Alexia Brunet,
, 4 J.
55
Victor E. Schwartz & Cary Silverman,
, 65 Emory L.J. Online 2065, 2066-67 (2016).
56
, 499 U.S. 1, 18 (1991).
57
, 538 U.S. 408
(2002); 532
U.S. 424 (2001); , 517 U.S. 559, 562-63
(1996); , 512 U.S. 415,420 (1994).
58
, 538 U.S. at 425.
59
, Alaska Stat. Ann. § 09.17.010; Colo. Rev. Stat. Ann. §
13-21-102.5; Haw. Rev. Stat. Ann. § 663-8.7; Idaho Code Ann. §
6-1603; Md. Code Ann., Cts. & Jud. Proc. § 11-108; Miss. Code Ann.
§ 11-1-60(2)(B); Ohio Rev. Code Ann. § 2315.18; Tenn. Code Ann.
liability actions. Mich. Comp. Laws 600.1483. Some of these laws
60
Victor E. Schwartz & Leah Lorber,
“” 54 S. C. L. Rev. 47 (2002).
61
Mark A. Behrens, Cary Silverman & Christopher
E. Appel,
, 44 Am. J. Trial
Adv. 321 (2021).
62
Kathleen Flynn Peterson, et al., , Trial (Apr.
63
, 884 N.W.2d 238, 255-56
may be “discounted” based on the plaintiff’s credibility).
64
70 Def. Counsel J.
378, 381 (July 2003); Dan B. Dobbs, Law of Remedies
65
Stacey L. Pietrowicz, ,
Mass. Courtroom Adoc. 10-1, § 10.10.1 (3d ed. 2019).
66
Valerie P. Hans & Valerie F. Reyna,
,
nonsense anchors, such as numbers from a roulette wheel spin or
more persuasive than an arbitrary one”).
67
812 S.E.2d 244, 248 (Ga. 2018)
68
“will pay their experts a thousand dollars an hour to come in here,
when you do your math back there don’t tell these plaintiffs that
a day in their life is worth less than an hour’s time of this fellow,
69
Gretchen B. Chapman & Brian H. Bornstein,
Christopher T. Stein & Michelle Drouin,
, 52 U.S.F. L. Rev. 393, 395-99 (2018).
70
John Campbell, et al.,
malpractice case presented with a $5 million anchor returned
participants who were left to decide a reasonable amount of
Bradley D. McAuliff & Brian H. Bornstein,
34 L. & Human Behavior
18-year-old pedestrian with a lump sum or per diem anchor
lawyer’s request, while those whose summary did not include an
anchor returned an amount that was less than half that amount).
71
Patricia Kuehn,
decision.”); Sonia Chopra,
, Plaintiff (Mar. 2013), at 1 (“Once an anchor
anchor provided is completely arbitrary”); David A. Wenner,
2013 Annual AAJ-Papers
overload” and “unconsciously welcome the presence of an
72
, 52 Cal. App. 5th 434, 446 (Cal. Ct. App.
2020) (reduced post-trial and by appellate court).
53 | U.S. Chamber of Commerce Institute for Legal Reform
73
No. 158373/2013, 2020 WL
4258745, at *6-7 (N.Y. Sup. Ct. July 24, 2020),, 193 A.D.3d
Plaintiffs’ lawyers have asked for amounts in the tens of millions
See Shaub Ahmuty Citrin & Spratt,
74
Peter Hayes,
75
The Top 100 Verdicts of 2019, Nat’l L.J. (report on
No. SC 17-CV-000106 (Ga. State Ct.,
, Fla. Bus.
76
John Campbell, et al.,
, 101 Iowa L. Rev.
543, 551 (2016).
77
, For the
Defense, Vol. 62, No. 4, 14, 18 (DRI, Apr. 2020).
78
Campbell, supra
50-state survey).
79
, 188 A. 111, 111 (Pa. 1936).
80
146 A.2d 394, 398 (Del. 1958).
81
182 N.E.2d 206, 208 (Ill. 1963).
82
182 A.2d 451, 452 (N.H. 1962);
, 106 N.W.2d 274,
counsel can manipulate it by day, hour, minute, second, or
seem reasonable); ,
83
Defendant Monsanto Company’s Opposition to Plaintiffs’ Motion
, No.
84
2020), at 47.
85
Mike Curley,
, Law360, June 1, 2022.
86
defense verdicts, and six other plaintiffs’ verdicts of $1.7 million,
$7.1 million, $8.2 million, $13 million, and $22.5 million).
87
(Apr. 2020), at 1-4.
88
.
89
, U.S. Chamber Inst.
90
Jacob Gershman,
, Wall St. J., Mar. 21, 2018.
91
Caroline Simson,
92
, Swiss Re Institute
(Dec. 2021), at 8.
93
at 2;
, Risk & Insurance, Jan. 11, 2022.
94
Patricia Cohen,
, N.Y. Times, Sept. 20, 2019.
95
96
, American Transportation Research Inst. (June 2020).
97
at 9, 13.
98
at 50.
99
Amy Buttell, , Inside Medical Liability
(First Quarter 2021).
100
, U.S.
the mandatory per-claim civil penalty provision of the federal False
Claims Act (FCA) disproportionately impacts the health care industry,
101
, June 11, 2021.
102
Jason Schiciano,
, The Journal News, Jan. 9, 2019.
103
Conner Harris, , City
104
See Schiciano supra note 102.
105
Motion of Defendants for Post-Trial Relief,
No. 130401990, 2019 WL 7630393 (Pa. Ct.
Comm. Pleas Oct. 17, 2019).
106
Katie Thomas,
, N.Y. Times, Jan. 17, 2020.
107
Brief of Appellants, No. ED 107476,
2019 WL 4696636, at *18-19 (Mo. Ct. App. Sept. 6, 2019).
U.S. Chamber of Commerce Institute for Legal Reform | 54
108
Bill Wichert,
, Law360, June 1, 2021.
109
Hobbs,
, supra
who tries catastrophic injury and death cases around the country,
110
, U.S. Chamber
111
Victor E. Schwartz & Christopher E. Appel,
112
Mo. Rev. Stat. § 510.263; N.C. Gen. Stat. § 1D-30; Ohio
Rev. Code § 2315.21(B); Tex. Civ. Prac. & Rem. Code § 41.009(a).
113
H.B. 19 (Tex. 2021); Jim Sitinson,
, Transport Dive, June 18, 2021.
114
Ohio Rev. Code § 2315.18(C)(3).
115
Tort Reform, WestLaw 50 State Statutory Surveys,
0100 SURVEYS 45 (2021); Dan B. Dobbs, Paul T.
Hayden & Ellen M. Bublick, The Law of Torts § 486 (2d ed.)
(“Well over half the states have enacted some kind of cap on
116
SURVEYS 25 (2021).
117
Victor E. Schwartz & Leah Lorber,
118
Fla. Stat. Ann. § 768.73(2).
119
19-31; Press Release,
, Fed. Trade Comm’n, Sept. 24,
120
Victor Schwartz & Cary Silverman,
, Law360, June 10, 2022.
121
122
Fed. R. Evid. 702 Comm. Notes on Rules––2000 Amend.
123
124
LCJ Applauds Unanimous Approval of Amendment to Rule 702 by
the Committee on Rules of Practice and Procedure, Lawyers for
Civil Justice, June 7, 2022.
125
David H. Levitt with Francis H. Brown III,
Group (2018).
126
See
7.1.1 (June 21, 2021).
127
Mark A. Behrens, Cary Silverman & Christopher
E. Appel,
, 44 Am. J. Trial
Adv. 321 (2021).
128
Notes
55 | U.S. Chamber of Commerce Institute for Legal Reform
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