Developing Nuclear Weapons

CLM’s Nuclear Verdict Task Force recently held the first of four virtual panel presentations as part of its “Preventing Nuclear Verdicts” program, which focuses on educating claims professionals and defense counsel on strategies to help excessive jury awards.

The course, “Identify Potential Problem Cases,” took place on April 7, 2021, was moderated by Dan Costello (managing partner, Daniel P. Costello & Associates, PC) and featured four keynote panelists:

•    Jerry Hamilton, Managing Shareholder, Hamilton, Miller & Birthisel LLP

•    Linette Ranieri, VP and Chief Resolution Officer, Berkley Life Sciences

•     Eric Sanders, Head of Property Casualty Claims - North America, QBE

•     Bob Tyson, Partner, Tyson & Mendes

Together, the panel facilitated discussions related to the problem of nuclear verdicts: what causes them, and suggestions for how to avoid them. To get started, they began with how they classify a nuclear verdict.

“I’ve heard some people define a nuclear verdict as a jury award of $10 million or more, but that is obviously way too simplistic,” says Ranieri. “[From a carrier perspective] I believe a nuclear verdict should be defined as any jury award that is disproportionately excessive based upon the actual damages suffered.”

How are nuclear verdicts affecting the way claims are handled? The basics still apply, according to Sanders.

“At its core, this is still about the good-old-fashioned way of managing claims, which includes being proactive in litigation management and making sure there is an awareness around what is happening at the venues and with juries that are driving the nuclear verdicts…. With that said, simply turning things over to counsel and being less active is not a way to manage claims anymore.”

The session also included discussions on the strategies that plaintiffs’ attorneys are implementing in the courtroom, which can help push a verdict into the nuclear realm.

“It’s not the advertising or media reports…what’s really happening is the change in how juries are being presented these particular cases,” says Hamilton. “Plaintiffs’ lawyers are simply asking juries to award those large amounts. In the past, plaintiffs were skittish about asking for a lot of money for fear of looking greedy…but the strategy has changed. I believe that is one of the reasons the frequency of nuclear verdicts has increased.”

Tyson, who literally wrote the book on nuclear verdict strategies for defense professionals, says there are patterns to these cases.

“I have yet to find a nuclear verdict where the plaintiff didn’t give a number,” he says. “A normal American doesn’t wake up and say, ‘I’m going to award $50 million today.’ But after a month of hearing about a traumatic brain injury and the plaintiff’s attorney saying how the money will make the plaintiff ‘whole,’” it can make a difference to a jury.

The second session of the series, entitled, “Slay the Reptile,” is set to air on May 25, 2021, and will tackle how to fight off the use of the reptile theory by plaintiffs’ attorneys. To listen to the first session or register for the remaining three, go to theclm.org or https://bit.ly/3ezxiSV.