Defense attorneys feel report on thermonuclear verdicts paints with too broad of a brush
By the numbers, the top industries for these thermonuclear verdicts are automobiles, security and alarm services, and insurance.
Since 2009, Georgia has seen a total of $4.43B in what a new report by Marathon Strategies now describes as “thermonuclear verdicts” — jury damage awards against corporations that are so big, the word “nuclear” can no longer cut it.
Georgia ranked ninth overall, surpassing New York, with Texas, Florida and California rounding out the top ranks. According to the report, eight of the state’s cited 29 cases involved verdicts in excess of $100 million (the minimum threshold for something to become in the report’s terms ‘thermonuclear’) and Georgia is following a larger national trend of bigger and bigger verdicts.
By the numbers, the top industries for these thermonuclear verdicts are automobiles, security and alarm services, and insurance. The types of suits most likely to see a nuclear verdict are motor vehicle, workplace negligence, products liability and premises liability. The districts with the highest awards doled out have Gwinnett and Clayton counties, due to outlier verdicts of over $1B.
Some Georgia defense attorneys said they feel that such a pronouncement lacks nuance and doesn’t accurately depict the challenges their field presents.
“That’s just setting another arbitrary threshold,” Jonathan Adleman, partner at Waldon Adelman Castilla Hiestand & Prout and a member of the Georgia Defense Lawyers Association said. “This is sometimes a definitional problem committed by the plaintiffs’ side but also by the authors of these reports — you can’t draw a line or pick a number and say any verdict above this amount constitutes a nuclear verdict.”
Adleman’s point is that the circumstances of a case often determine how much money a reasonable verdict is really worth.
For instance, some cases do warrant a high number of damages. In particular, Adleman cites personal (or, as he prefers to call them, “bodily”) injury cases where the plaintiff becomes a quadriplegic. In that kind of situation, not only does the plaintiff have medical bills resulting from the injury, but will need to pay for medical care and accommodations for the rest of their life, which could end up as a very large sum of money.
The issue is drawing the line between reasonable and unreasonable jury awards, and that is a more subjective assessment. Furthermore, not every personal injury case results in a verdict, and only 19% of Georgia’s verdicts have punitive damages — lower than the 26% national rate — so where are all these huge numbers coming from?
The report says a variety of factors influence these verdicts, such as local laws like court procedures favoring plaintiffs and an absence of limits for punitive damages. The State Supreme Court may have recently upheld Georgia’s punitive damages cap, but according to some defense lawyers, the state still has laws on the books that create an “imbalanced playing field.”
Jacob Daly, senior counsel at Freeman Mathis & Gary and another member of the GDLA, cited additional nuances in Georgia’s statutes, namely “phantom damages” and Georgia’s “seatbelt defense law.”
On a national level, the report says increases in verdicts can also be tied to factors including “corporate mistrust, social pessimism, erosion of tort reform, public desensitization to large numbers and shifts in jury pool demographics.” They are also linked to litigation trends and trial tactics, like joinders, anchoring” and “reptile theory.”
Still, the report isn’t perfect and it is limited in that it tracks the gross verdict amounts juries have awarded, but not the cases’ final payouts. Several of the cited cases are ongoing and some defendants have publicly announced they are currently appealing or intend to appeal their verdicts.
The attorneys were quick to speak highly of their opposing counsels and were very clear in their support of the jury system, but did not shy away from expressing their concern about the sustainability and effects of ever-increasing verdicts — and commercial insurance rates.
“You pretty much have to have insurance if you operate any kind of business, so if the policyholders have to pay [higher insurance premiums], where do people think that money is going to come from? That it’s just going to poof out of the sky or that businesses are just going to run without making a profit?” asked Martin Levinson, partner at Hawkins Parnell & Young and a vice president of the GDLA. “People don’t want to talk about this, but there is only one place that it can come from. It comes from the consumer.”
Related:
Notes from ALM’s Complex Claims & Litigation Forum 2023