Post-Covid “Nuclear” Verdicts: What the Heck is Going On?

 

The Covid pandemic effectively ended civil jury trials in Texas in early 2020.  Beginning in late August 2020, though, jury trials slowly began to resume in a few Texas counties under strict Covid screening and jury-protection measures. That pace increased slightly until the end of the year and continued to increase at a growing rate around March 2021.

In most counties jury selection was typically done in large stadiums or similar facilities to accommodate social distancing. For the same reason all counsel were required to stand at significant distances from prospective jurors, particularly those seated in the back of the large facilities. Lawyers also were forced to wear either surgical masks or face shields and communicate with venire panel members through wireless microphones and headsets. At trial, to comply with social distancing jurors were typically seated in the gallery, rather than the jury box. Thus, a lawyer would either have her back to the jury as witnesses were being questioned, or even more awkwardly would face the jury while talking to a witness behind her.

As jury trials resumed, there also was much speculation as to the socio-economic status of citizens who would respond to jury summonses and how jurors might assess liability and damages in personal injury cases. A common (but untestable), presumption was that conservative citizens, the “anti-vaxxer” crowd, were most likely to appear and could dominate panels. Another common belief was that the unprecedented severe economic woes being faced by the community would suppress personal injury verdicts. Finally, it was commonly believed that plaintiff attorneys, who many feel rely more on emotion than facts in appealing to juries, would be significantly disadvantaged by the distanced voir dire and trial processes. The widespread conclusion was that personal injury verdicts for plaintiffs during the post-Covid period would likely be rare, with small damage awards.

But there have been a number of very large and surprising personal injury verdicts returned in various parts of Texas, several in what are traditionally considered very conservative venues. These extremely large verdicts are often referred to by insurance carriers as “nuclear” verdicts, and they have called into question the presumptions and conclusion regarding the effect of the pandemic on jury verdicts. The following are some of these recent verdicts:

March 2021          Tyler (Federal Court)                           $1.4 million for an unoperated back

May 2021              Harris County                                        $7 million for an operated neck

June 2021             Fort Bend County                                 $220 million for two wrongful deaths

July 2021               San Jacinto County                              $10 million for a single wrongful death

July 2021               Montgomery County                           $238 thousand for a soft tissue injury

Aug. 2021              Bell County                                            $5.49 million for a wrongful death

Aug. 2021              Harris County                                        $2.3 million for a sternum and knee injury case

Sept. 2021            Smith County                                        $2.4 million for a dog bite case

Oct. 2021              Reeves County                                      $21 million for an operated back

Oct. 2021              Harris County                                        $352 million for a paraplegia/brain damage case

Oct. 2021              Collin County                                        $85 million for a gunshot wound

Oct. 2021              Harris County                                        $30 million for a single wrongful death

Oct. 2021              Harris County                                        $1.85 million for a broken ankle and elbow

Nov. 2021             Angelina County                                   $869 thousand for an unoperated back

Nov. 2021             Fort Worth (Federal Court)                $7.5 million for a serious burn

Nov. 2021             Harris County                                        $44.6 million on a premises liability sexual assault case

Three critical questions remain, were these results: (1) predictable; (2) reflective of a trend; and (3) likely to continue?  The answers depend on the cause of the verdicts.

It would almost certainly be purposeless and likely misleading to ask jurors in these cases why they reached such large verdicts. To paraphrase Dr. Clotaire Rapaille, it is a waste of time to ask people why they did what they did because they do not know, but they will give whatever they perceive as the most plausible reason that would justify or reasonably explain their decision. So, for a meaningful analysis it is necessary to look at the circumstances that gave rise to the results, an indirect approach.

Two fundamental facts should be kept in mind. First, human beings are the product of millions of years of evolution of creatures who have survived by learning to recognize and avoid (or kill), things they perceive pose a danger to themselves or their families. This survival instinct is not only strongly embedded in humans, but most neuropsychologists agree it often is the overwhelming factor in human decision-making on important issues. The second fact, a corollary of the first, is that humans will virtually always act in a manner that is consistent with what they perceive — mistakenly or correctly — to be in their self-interest.

So, what circumstances have evolved during the Covid pandemic that might cause jurors to render such large verdicts in personal injury cases? Several.

Although demographic data on who shows up for jury service is not readily available, it appears anecdotally that there has not been the expected significant conservative shift in jury pools. Accordingly, jury panels appear to be about as diverse as they were before the pandemic.

Substantively, Americans clearly have developed a general unease with their own economic situations. Millions of jobs have vanished overnight, together with the security net features those jobs provided.  American working people are much more worried today than they were pre-Covid about whether they will be able to feed, house, clothe, educate, and provide medical care for their families.

In addition, citizens appear to have developed a growing sense of animosity toward large institutions that have mostly profited during this crisis, as well as the wealthy folks who own and control those institutions. While ordinary citizens have become increasingly economically insecure, they are inundated with daily reminders that companies such as Amazon and WalMart, as well as folks like Jeff Bezos, Elon Musk, Warren Buffet, and Bill Gates, have seen their taxes lowered and their incomes and assets increased exponentially during this economic crisis.

Finally, Americans no longer appear to have any aversion to big numbers. They are besieged with them every day, such as the multiple trillion-dollar bailout packages passed repeatedly to avoid economic tailspins, multi-million dollar sports star and college coaching salaries, other reported large jury verdicts, and routine six-figure student debts carried by most recent college graduates. Not only have citizens unsurprisingly become desensitized to such large numbers, they appear to see these types of numbers as routine and necessary for economic and personal security.

When confronted with a plaintiff who has been injured and who may not be able to work in the future to support her family, these factors appear to cause many jurors to put themselves in the place of the plaintiff and reach awards that those jurors feel would be necessary to ensure their own economic security if they were similarly injured. This likely results from the combination of the survival instinct, the economic unease many jurors are feeling, the animosity those same jurors have developed toward those who have benefited during this crisis, the growing sense the community has a need to protect its own, and the sense they are acting in their own best interests by returning a large verdict: “I could be that plaintiff next time, and I would be counting on community members like me to take care of my family’s and my future, so I had better take care of this plaintiff myself.” Thus, nuclear jury verdicts.

There may be a long-term decrease in this trend, as economic uncertainties ease and tax laws are changed to make the system seem fairer to ordinary citizens. That remains to be seen. What is known with certainty is that at present none of these causes is diminishing and in fact they appear to be growing. Thus, while not every case will result in a nuclear verdict, it seems quite likely that such nuclear verdicts will continue anecdotally in the foreseeable future, perhaps at an increasing pace. Defendants and insurers would be wise to recognize this fact and plug it into their risk analysis in deciding how much they should be willing to pay to avoid a jury trial, particularly in cases with a significant injury and a sympathetic plaintiff.

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